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Death and Digital Data

With the proliferation of the digital data we create, there comes the growth of a potential problem area in the treatment of such data upon the death of the person who created and stored it. Difficulties encountered and/or anticipated by the representatives and heirs of deceased persons have prompted the development of a Uniform Fiduciary Access to Digital Assets Act and the adoption of a variation on that Act by the state of Delaware just this month.

Under existing law, a personal representative or executor has access to the deceased person’s tangible possessions, including papers, records, photos, letters and more. However, since these laws fail to address digital data, it may not be so simple for these persons to reach digital versions of this information stored in password protected files, in e-mail accounts, in the cloud, on various social media and more.

One way to ensure that your personal representative or other fiduciary does not encounter these issues is simply to plan ahead for what you want to happen to this data on your death. You may direct that it be destroyed, passed on to your heirs generally, evaluated by the fiduciary or third party or handled in some other fashion. It will be necessary, of course, to make sure that the information needed to perform this task is available – from the existence of the data to the means necessary to access and handle it. Yes, this means lists of locations, login names, passwords, answers to security questions and more. Since the goal of much of estate planning is to make things easier for your loved ones upon your death, it should be clear why you need to do this, now. For our article about working with digital assets, send a request to

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