Can you avoid digital death?

As a genealogist, if you are reading this post, you probably have an online presence. This presence could include information on a family tree website, a Facebook page, a blog, or some other online activity that contains information about you and/or your family. What will happen to your online presence when you die? Will your data live on without you? The answer to both these questions depends on a whole list of factors starting with your own preparations.

Digital inheritance is an extremely complex issue especially when the deceased person had multiple accounts subject to different terms of service. An example of the complexity of the subject is determining the locus of the asset. In the United States, the jurisdiction of the court (i.e. the ability to hear a case) is determined by the place where the property of the decedent is located. If you have your genealogical data on a popular online website, where is the data located for the purpose of probating your estate? You could argue that the data was accessed on the deceased computer so you might be able to obtain jurisdiction over the data by filing a probate action in the court where the deceased resided at the time of death. But that claim could be opposed by an argument that the data resided where it is stored, i.e. the location of the internet server where the information is stored. I can also see this issue being decided based on the terms of the agreement between the deceased and the hosting company.

Let's suppose you have on a website protected by a password. After your death, what would your devisees have to do to obtain access to the website? You will find that every website has a different answer. One place to start is to have digital assets language in your will or trust. You may need a qualified attorney to assist you in adding the language to an existing will or you can instruct your attorney to include the language in any future will. See Sample Will and Power of Attorney Language for Digital Assets for an example of the type of language that would be helpful. One simple help is to include a list of passwords and websites with your testamentary documents.

However, as an attorney that spent years in the probate court of Arizona, I can suggest that any wording in any will or trust is only as helpful as the executor, personal representative, or trustee is reliable and trustworthy. I have seen these fiduciaries totally disregard the wording and the intent of a testamentary document.

The reason why this subject is important is the simple fact that many websites deny access to the data on the website when a person dies or when they get notice of the death of a patron. Unless the genealogist's heirs work expeditiously and rapidly, they will likely be locked out of many websites.

We should all know that websites may not last forever. Some large online database companies have already gone out of business. Even with careful testamentary provisions, data may be lost over time. If the genealogist is incapacitated for a period of time, such as with dementia or other condition, the fact that you provide for your death may not matter by the time you die. The damage to your digital assets may already have taken place through a failure to pay the online subscription charges. In this case, it is better to act earlier than later in putting together a Durable Power of Attorney that may assist a caregiver to maintain existing accounts. Once again, if the caregiver does not have some access to a list of websites and their logins and passwords, all the power the law can provide may be futile.

One good alternative for genealogists is to put all of your information on a free, open, website such as FamilySearch.org. I am still getting complaints from people about the fact that the "information could be changed" but those who make this excuse for avoiding the website either have not used it or do not want to spend the time cleaning up and maintaining the information. I have written extensively on this issue and made sever video presentations that are on the BYU Family History Library YouTube Channel about this issue. If you ignore this option, you simply increase the risk that your work will be lost.

The best way to preserve your genealogical digital heritage is to enlist one or more of your heirs in maintaining your research and data. If, for example, your children are involved in genealogical research, you will have a much greater chance of having your work preserved. Even if your heirs are involved in your research, you still need specific digital provisions in any testamentary document.