Apple recently introduced its new Digital Legacy service. While Google, Facebook, and others have had policies in place for a few years to address what happens when a user passes away, Apple previously provided no recourse to grieving loved ones who wanted access to a deceased person’s Apple devices. Digital Legacy allows users to identify who can access their iCloud content after death. Those people become known as your Legacy Contacts.If you are an Apple user, take a few minutes now to set up at least one Legacy Contact.
Digital Legacy is a Good Start But Apple Needs to do More
While I think Apple Digital Legacy is a good start, there is a lot more Apple can and should do to help Apple users provide access to loved ones in the event of incapacity and at the user’s death. Of course, not all Apple users want their loved ones to have access to their content and devices when they’re gone. In my experience. though, most people over the age of 40 do want their loved ones to have access to their devices and content.
My first concern is that the Digital Legacy service only covers items stored in iCloud. That means only items stored on iCloud can be accessed by the Legacy Contacts. This can include photos, videos, emails, etc. But Apple charges its users for anything more than basic level iCloud storage. Most users have to invest in Apple’s monthly fee-based iCloud subscription service if they want to store all their content. Charges vary based on the amount of storage needed. The fees to store a lifetime of content on iCloud may be too costly for many users.
My second concern is that Apple has yet to provide an easy way for users to grant access to their device itself. For example, let’s say Mary’s husband, Bill passes away and Mary wants to access Bill’s iPad to listen to audio recordings he stored on it. She also wants to access the old family recipes Bill stored on a folder on the iPad. Neither of these things are on iCloud. If Mary does not have Bill’s Apple ID, she has no recourse. The Digital Legacy service does not provide access to any of that content. The precious memories of Bill are lost forever. This is why I support the recommendation of the Digital Legacy Association:
“Apple (and other device manufacturers) develop features that operate at a device level. It will be easier for many of the bereaved to access photos and other digital assets on the deceased’s own device rather than needing to download it all onto their own device (and operating system).”
Digital Legacy Association
At present, the only recourse Mary has, assuming she has Bill’s Apple ID but not the password to the iPad, is to obtain a court order. Apple has a list of requirements that must be included in the court order. But without the Apple ID, the iPad may be rendered useless.
My third concern about Apple’s Digital Legacy service is that it only applies in the case of death. It offers no solution in the event of incapacity. Let’s go back to Bill and Mary. Bill died due to Covid. Before his death, Bill was on a ventilator for a month. During that time, Mary needed to access the list of passwords to all their accounts that Bill kept on his iPad. But she didn’t know his password to get access to the iPad. Since the Digital Legacy service becomes effective only after death, not during incapacity, there was no recourse for Mary. She could not access the information she needed because she had no access to the device or to the content stored on iCloud.
Here are my recommendations on how to make sure your loved ones can access your Apple devices in the event you get sick and after death. Make sure you do all five things:
First, create at least three Legacy Contacts. Just like I recommend that my clients have at least three successors listed in their documents, I recommend that you name at least three people as your Digital Legacy Contacts. That way, if something happens to the first person you name, the second person can step up. We see situations all the time where the people who have been named as executors or trustees have passed away and there is no backup person listed. For the Digital Legacy service, if the people whom you named as Legacy Contacts have passed away, no one else will be able to access the content. Apple allows you to name up to five people—take advantage of that. Of course, make sure you ask the people whom you name if they agree to serve as your Digital Legacy Contact. It is a responsibility you are entrusting them with and it’s important that you know now if they don’t feel comfortable serving in that role. That way, you can be sure the people whom you name as Digital Legacy Contacts are comfortable serving in that capacity.
Second, explain to the people whom you have named as your Digital Legacy Contact how important it is for them to keep the access key in a safe place. If they lose it, they won’t be able to access your iCloud content. Consider keeping your Digital Legacy service access key with your list of passwords for safeguarding.
Third, in your estate planning documents be sure to include provisions allowing your fiduciaries to have access to your digital devices and digital content. This continues to be the best way to make sure your loved ones will have access to what they need in the event something happens to you.
Fourth, keep your list of passwords, including your Apple ID, up-to-date. Make sure it can be easily accessible by your trustee or executor in case something happens to you. Despite the introduction of Digital Legacy, passing on your passwords and including authorization for your trustee and executor to access your digital accounts continues as the preferred means to ensure that your digital assets will be taken care of according to your wishes. But remember, using passwords without having written authorization is a crime. That authorization should be in your financial power of attorney, your trust document, and your Will. If you don’t want your loved ones to get into trouble for using your passwords, make sure you grant permission in your documents for them to access the devices and accounts.
Lastly, if you end up in the hospital, make sure you have instructions with you on how to access your smartphone. If you need to call home but you are too groggy to remember your password, hospital staff can access your phone and help you call your loved ones. As we saw during Covid, when loved ones are not allowed into a hospital or nursing facility, their phone becomes a lifeline to the outside world.