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Planning your digital legacy

Include digital assets in a will, as e-mail and social networking websites don't provide account access to legal heirs. To know what else you can do, read on

Tinesh Bhasin 

Ever wondered what will happen to your e-mail and social networking accounts after you die? Who will get to own your Gmail or Yahoo! account and who will get possession of your photos and videos on Facebook, Google+, and YouTube? Will your legal heir get access to your net banking and trading account?

Pavan Duggal, a leading lawyer, gives examples from a recent case he handled. A writer passed away without sharing details of his email account, which had his unpublished work, with his family. In his memory, the family wanted to publish the work but couldn't access his emails. When they approached the service provider, it refused to grant access. Most online services do not share account details and passwords to legal heir or relatives. They also reserve the right to deactivate and delete the account if they don't detect activity for a certain period.

  • Make a list of assets. Search for these in computers and mobile phones
  • If username or password is in writing, change it immediately
  • If there are no details, contact the service providers
  • If the websites seek court order, move the court of a competent jurisdiction
  • Follow the proceedings persistently, as the succession certificate takes time
  • If service provider refuses access, file a case

If a person passes away without sharing the account details and password, the only possible way is to approach the court. Increasingly, service providers are considering court's succession certificates and letting the legal heir access accounts of deceased, says Duggal. Getting the certificate, however, takes almost a year. This means, by the time the family would have got access to the email, there is a possibility that the account is inactive, deleted or its data is pruned.

If the service provider does not accept the succession certificate, the legal heir can approach the court. "But the court, needs to be satisfied with the fact that legal heir is genuine and also has bona fide reasons to access deceased's accounts, as the information contained in the email and social networking can be misused. The first question that would arise in this case: if a person wanted the legal heir to access the information, he/she would have made provisions for it in the will or given the access code to the heir," says Daksha Baxi, partner, Khaitan & Co.

Not making provisions to share account details after one passes away can have repercussions. There could be essential financial information locked away. The deceased might have online financial accounts with money or credits left over.

Google: The company has a feature that lets users designate how they would like their accounts to be handled after death. It's called Inactive Account Manager. A person can choose to have the data deleted after a particular time period, say after six, nine or 12 months of inactivity. Or he/she can select trusted contacts to receive data from Google services. Some of the popular ones among these include Drive, Gmail, Google+ and YouTube. Before the company's systems take any action, a warning message is also sent to the registered cell phone and secondary e-mail address.

Facebook: This social networking bellwether offers a completely different option. A deceased user's page can be memorialised, letting family and friends leave messages of remembrance. This can be done by providing proof of death of the account holder to the company.

Twitter & Yahoo!: These companies work with a person authorised to act on the behalf of the estate or with a verified immediate family member of the deceased to have an account de-activated.

Stock trading account: Online trading accounts comprise two parts, the broking account and the demat account, which has the shares. When a customer comes on board, he needs to mention the nominee for the broking account. In case of death of a customer, brokers help the nominee to gain access to the broking account after verification. In case a nominee is not mentioned, the succession process is followed as laid down by the law.

Net banking account: When banks are intimated of the death of a customer, they freeze all accounts. If the nominee is mentioned, the cheque is issued to him or her after document verification. If not, they follow the succession process laid down by the law.

Lawyers say the best way to ensure your digital assets are passed to the intended person(s) is by including the information in your will. Anju Gandhi, partner, SNG & Partners, Advocates & Solicitors, says the will needs to mention who will get what and details of the accounts need to be stored securely. For example, if a person wants to pass on the e-mail accounts to a daughter and financial account information to a son, he or she needs to specify this in the will. The usernames and passwords can be stored online, in an encrypted format. Alternatively, in a bank locker. It needs to be kept separate because a will, once registered with the court, become a public document and can be accessed easily.

Like Google's Inactive Account Manager, there are smany online services that offer a similar facility for multiple online accounts.

Cirrus Legacy: A person can nominate guardians to protect a digital legacy, by carrying out wishes in the event of death. When the person passes away, the guardian can access the usernames and passwords of the person and take whatever action they have specified.

Dead Man's Switch: This service lets you write e-mails and choose the recipients. These e-mails are stored securely. The person receives regular e-mail from the company, asking him or her to show that they are fine by clicking a link. Such a check mail is sent more than once; 30, 45 and 52 days after the person's las log-in. If the accountholder does not respond to messages, the intended e-mails are sent after 60 days. There's a free as well as paid plan.

SecureSafe: This is primarily a secure online storage website that allows data to be shared in case a person passes away. However, the sharing does not automatically happen. The account holder needs to specify one or more persons to be 'authorised activators', who will initiate the process. The service has a free and four paid plans.

A ‘will’ to solve problems: Pawan Duggal
In today’s world, all of us have become data generators, data creators, data broadcasters and data transmitters. We are increasingly putting a lot of our intellectual property and inputs on our accounts, whether they will be social networking, email accounts or financial service accounts.

A variety of legal issues can arise if a person passes away without sharing his/her account details. In such a case, the legal heirs will have to approach the service providers for giving access to such accounts. Increasingly service providers are insisting on court orders before providing access. The legal heirs then need to seek a succession certificate from a Court of competent jurisdiction and then hand over the same over to the concerned service provider.

A lot of times the service providers do not save the data and in lot of cases, data have been auto-deleted due to inactivity over time. There have even been cases where legal heirs are not even aware of the exact details of the deceased’s user IDs and passwords. That’s why we advice clients to opt for a will that lists their digital assets and person who should get it. A person can also opt for a digital will that is digitally signed and is a legally authenticated electronic record under the Information Technology Act, 2000.

Pawan Duggal
Advocate specialising in cyber laws

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First Published: Sun, August 09 2015. 23:50 IST