If I shall die before I wake...

What will become of my digital heritage? I recently wrote about Dying Online, but there is a lot more to be said on this topic. My mind continued thinking about the conditions imposed by Google for allowing heirs to access a deceased person's accounts. I cannot believe that a major corporation's attorneys would intentionally concoct a system that would frustrate many of the user's estate plans. One of the purposes for creating testamentary trusts is to avoid "probate," the involvement of the court in a person's private affairs and also avoiding the need for the expense and waste of time going to court over trivial matters.

Following the requirements imposed by Google for gaining access to the deceased's accounts could end up costing the estate thousands of dollars and keeping the estate open for years. It is not unlikely that filing a probate to have a personal representative (executor) appointed for the estate as required by Google could open the door to the heirs contesting the estate and creating a disaster. I have more than ample experience that this not only possible but in many cases, likely.

Is there a way around this dilemma? Yes and quite a simple one. As long as all it takes is a login and a password to access online accounts, the Trustee of any testamentary trust should be given specific authority to act with regard to the deceased's online accounts. In today's world the barest minimum of estate planning should take into account all of the online accounts. Any one with enough foresight to set up trust should also use that same foresight to provide an up-to-date list of logins and passwords. One of the very first things the heirs ought to do if the deceased had an online presence is to take care of the online accounts. This should be done with dispatch.

The personal representative or Trustee of an estate should be someone who has the necessary ability to act online. It is customary to name a surviving spouse to this trust position, but it that surviving spouse has little or no online sophistication, there may be yet another possible disaster. In many households, most of the periodic bills are now being paid by automatic withdrawals from joint checking accounts. It may take some considerable computer skills to find and close these accounts. This also applies if the person become mentally incapacitated. Adequate planning should provide for appointment of an attorney-in-fact to act under an adequate Durable Power of Attorney or the equivalent in the applicable jurisdiction.

This is a highly complex and technical subject. I could write an entire book on the subject. If you decide you legal help, ask the attorney you consult to show you his Facebook, Twitter and Google+ accounts and ask him or her if they have read the Google requirements for closing an online account.

I strongly suggest that this topic be addressed as soon as possible by anyone with a sizable online presence.