We live our lives generally as though dramatic change won’t surprise us and, if it does, we’ll deal with it at that time.  But, as Whitney Houston’s untimely death shocked us all last Saturday, we realize that we need to prepare for the unexpected.  Beyond the traditional methods of estate planning for the ultimate event, the fact that technology has been a game-changer in our lives and legacy cannot be overlooked or overstated.  Just take an inventory of how much of your life, memories, information, financial and otherwise, is stored digitally and on social media.  Now, ask yourself what would happen if a sudden, unexpected event happened to you or yours.  Would anyone be able to access certain vital information?  Would you want them to? Would they need to access certain information to manage your affairs?  If so, where would they find it and how would they find it?  In many instances, the answer is going to be yes.  In those other instances of your private life, well, there are at least two mindsets to deal with those issues:  1) You might want to sanitize those areas so that it doesn’t matter; or 2) after you’re “gone,” who cares anyway and it doesn’t matter.  Still, mindset #1 seems the most practical alternative, given that technology often means we don’t “go” and linger instead.  You don’t need angry family members taking care of your lingering self.  So, let’s take a quick look at two areas of our lives that you may not have contemplated:  digital assets and social media like Facebook, and see what we might need to start considering if someone was appointed a caretaker or personal representative over ourselves and/or estates.  A person with such duties is going to be charged with the fiduciary obligation to preserve and protect those assets, just like any other assets.  We don’t need to complicate such task.
Digital Assets
Digital assets fall essentially into two categories:  online user account names and passwords and the information contained within those access portals and those files stored locally on your devices or other storage media (think CDs, external drives, phones, hard-drives, etc.).  You undoubtedly have a plethora of user-created files that are important and valuable to you and/or your business.  Consider they may contain intellectual property, addresses, financial data, credit reports or other valuable business and/or personal information/documents.  You most likely have a lot of purchased materials such as software, music, videos, e-books and the like.  Then, there are all those online accounts we all have with email, PayPal, banks, financial institutions, etc.  Consider all those repetitive online only transactions that occur that no one would know about if they did not have access to such information.  Just the thought of the volume of email to manage should shiver your timbers!
The problems arise in those pesky “Agreements” that we always just click through when purchasing or registering online.  These “Terms of Service” Agreements (“TOS”) are contracts that govern what will happen to those accounts, software, information and the like.  Generally, TOS agreements do not allow for the immediate or automatic transfer of the account to a personal representative.  A personal representative may then have difficulty in meeting the requirements of any underlying will or trust.  Further, the most common TOS only grants purchasers a non-transferable license to use the product for the purchaser’s life.  Online companies thus have rights that were created in the those TOS Agreements and as is becoming increasingly common, will move to enforce those rights.  Many TOS Agreements grant the online companies the right to delete an account within a period of time following the purchaser’s or member’s death.  So, a personal representative needs the ability to protect the decedent’s digital files and/or hardware to ensure proper administration.
Social Media – e.g., Facebook
People now develop online personas as an important, sometimes indispensable, part of their lives.  We are storing an enormous amount of memories, information and emotion on social media such as Facebook and Twitter.  There are becoming an increasing number of cases demonstrating the horror and frustration of families and friends trying to manage these types of accounts for their deceased loved ones.  In response, state legislatures are developing new laws to directly address these issues.  One legitimate question is why these types of assets and agreements should be handled any differently than any other, more traditional asset and/or agreement would be treated in an end-of-life situation.  Perhaps unsurprisingly, the tension is with various federal laws such as the Electronic Communications Privacy Act (“ECPA”).  That law generally prohibits an online company from “providing access to any person who is not an account owner.”
Facebook’s TOS is extensive and cites numerous state and federal laws, including the ECPA, in support of its privacy policy.  Facebook’s policy is to place a user’s account in a memorialized state upon learning of the user’s death.  The deceased’s page is frozen to a degree, yet friends can still leave comments on that user’s page.  Facebook requires a death certificate to terminate or delete an account on request from an immediate family member or next of kin.  Twitter will work with an authorized person to deactivate an account.  Email providers will provide account data to representatives of a deceased user only in the exceptional case—it is the exception, not the rule.
To date, only Connecticut, Idaho, Indiana, Oklahoma, and Rhode Island currently have laws in place that give the executor of an estate the power “to take control of, conduct, or terminate” the online account of a deceased person.  Nebraska is currently taking up the issue and has a bill pending in the legislature.  Clearly, uniformity of laws is going to be an issue and cries out for a national solution in some form.
The horror stories come in those cases of suicide, single adults and the death of a minor.  A California 20-year old man killed himself with a gun.  Before making that decision, the man uploaded to Facebook a photograph showing him holding a gun to his mouth.  Facebook took a month to remove the picture despite his parents frantic efforts to sooner remove the haunting image.  A 32-year old lady died unexpectedly in Minnesota and her parents tried to convert her site containing hundreds of friends and photographs into an ongoing memorial that they would manage.  Instead, Facebook converted the site into a memorial, but her parents have no access to manage the site.  Then, when a 15-year old in Virginia committed suicide, his parents didn’t know his password and so could not access the Facebook account until after 10 months of haggling.  Facebook ultimately gave the parents a download of the account on CD, but refused to provide the password.  Facebook cited privacy laws and their own policy as sufficient grounds to refuse even parental access to a minor’s account.
Solutions
1.       Make a comprehensive list of all digital assets, including online accounts, passwords, data files, email accounts, websites, hard-drives, important Word and Excel documents, online storage accounts and social media accounts.  Get your kid’s password somehow; maybe make some kind of a deal with them after explaining the need.
2.      List your wishes for each asset.  Consider leaving the asset directly to a specified heir.  For online accounts, consider
a.      Shutting down the account;
b.      Doing nothing;
c.      Archiving the account on CD or DVD;
d.      Creating an auto-response on the account;
e.      Forward all messages to another place.
3.      Choose the person who will receive each asset.
4.      Provide access and control to the recipient.
My law firm currently provides digital estate planning services, such as secure maintenance of online digital asset information and other estate planning document storage and maintenance.  That way, it’s never lost and it’s not such a problem for the client’s digital executor or other personal representative to have access to such information, including storing messages to deliver to loved ones posthumously.  Touch base with us at http://wrnicholslaw.com to discuss what we can offer you and your family in this new era of technology-driven lifestyles.   WRNicholsLaw is staying on the cutting-edge of this new frontier!
Sources:
Scott R. Zucker, Esq., The Zucker Law Firm, LLC, licensed in Virginia, Maryland and Pennsylvania;
Peggy Hoyt, Esq., Hoyt & Bryan, LLC, Orlando, FL.
Steve Eder, “Deaths Pose Test for Facebook,” The Wall Street Journal, February 11, 2012.