I have written many times about digital assets, and how access to them after death can be extremely difficult. In Delaware, they recently took a giant leap toward increasing access. Since August 2014, if you are acting as a fiduciary, whether during someone’s incapacity or after their death, you can now have full access to their digital assets, as if the person were acting alone instead of by a fiduciary. It applies to access to email, social media, financial management, health care and other digital accounts.
Response to the law from the largest tech companies, among them Facebook, Yahoo! and Google, was to say that passing these assets to the fiduciary would be a breach of the terms of service of each user as he or she signed up for an account, and that accounts should be deleted on proof of death, rather than access given to the fiduciary.
Ultimately, I think it depends on the individual. I talk to all of my clients about digital assets and the need to think about them in terms of estate planning. If you would have been the type to keep all of your old letters, which could then be found by your heirs, then perhaps having access to email isn’t so bad; if you are more private, then state in your will that you do not want them looking at your email but only contacting the service provider to close it down. Access for the executor is important to ensure accounts are controlled; what they do with that access can be up to you, if you decide.
