The May 2013 issue of the Internet Law Researcher newsletter (which is available to members of the Duke Law community through Westlaw‘s GLILR database) rounds up a bibliography of legislation and articles related to digital asset estate planning. To locate the article in Westlaw Classic or WestlawNext, use the citation 18 No. 5 Internet L. Researcher 1.
Planning for death has always been an uncomfortable and difficult topic for most people, and the growth of social media and other online accounts has added a new layer of complexity to sorting out the affairs of the recently deceased. Author Ken Kozlowski describes the current situation as “a big mess” in which “the federal Stored Communications Act (SCA) [is] being cited as a reason for services such as Facebook to withhold access to deceased individuals’ accounts, passwords, stored photos, etc.” Five states have passed legislation related to control of deceased individuals’ online accounts, and undoubtedly more state legislatures will follow suit.
The Internet Law Researcher article recommends a number of publications from legal and mainstream sources, including the recent law review student note by Maria Perrone, What Happens When We Die: Estate Planning of Digital Assets, and the blog Digital Passing. The recommended resources offer tips for developing a plan to handle digital assets after death, and serve as a good supplement to the Goodson Law Library’s collection of estate planning guides, most of which do not discuss digital assets in detail.
Meet Courtney.* She represents the average family caregiver: 34 years old, a full-time nurse, mother to a pre-teen daughter, with a half-brother who lives several states away and a younger brother in the military. Like many Americans, she lives on-line, utilizing at least 25 password-protected sites on different computers and a smart phone, where she stores and shares the vulnerable, mundane, and whimsical in her life while connecting to family and friends. Before her mother’s illness, she had thought little of her own digital assets, let alone those of anyone else. When she joined the one-third of the US population who provides care for an ill, disabled, or aged person — two thirds of whom are women, shepherding her terminally ill mother’s online presence in life and after her death became very important. We use Courtney’s story to give us a glimpse into the questions, tasks, unexpected dilemmas, and benefits that await us in caring and grieving in the digital age.
The news that her 58-year-old mother faced terminal cancer shocked Courtney and propelled her into caregiving action. Drawing on her nursing background and love of organization, Courtney created spreadsheets to track her mother’s medications and the signs and symptoms of her disease. She and her mother searched disease progression and treatment options on-line, making lists of questions for her doctors and finding support groups. Courtney also began a private blog, tracing her mother’s stays in the hospital, and she treasures pictures stored on her phone of her mother’s last Halloween, hospitalized but still trick-or-treating at the nurses’ station.
As her mother’s condition declined, Courtney realized that her own comfort level with sharing her personal story through digital media and her mother’s were different, and her mother’s wishes took precedent over her own. For example, she considered using a caregiving site likeCaringBridge to help her mobilize support, but her mother’s wishes for a high level of privacy during her illness meant private e-mail messages and texting were best. Before her mother’s illness, Courtney shared her life’s ups and downs regularly on Facebook and Twitter, but now she tried to follow general digital etiquette advice as best she could, speaking only from her perspective as a daughter, refraining from telling her mother’s story without her permission. Most of the time, though, she found herself too exhausted to share anything and used Facebook to unwind, living vicariously through the pictures, status updates, and tweets of her friends.
Courtney soon realized that she did not know what digital accounts her mother had, let alone what she would want done with them in the future. On one of her mother’s stronger days, they sat down to begin sorting through her digital life together. Clicking through her mother’s Shutterfly, Pinterest, ITunes and Facebook accounts became an opportunity for reminiscing. Because most digital accounts are non-transferrable, they decided what material needed to be saved to her computer’s hard drive, which accounts to close, and which accounts to leave active, like her Facebook page which she still enjoyed using to keep up on her distant grandkids and childhood friends.
Because of her mother’s wishes for privacy, Courtney was surprised when her phone began buzzing non-stop soon after her mother died:
It was weird, because I’d only told a few people that she was dying. I learned that a family friend had been posting detailed updates about my mother’s last moments, and never checked with us about whether we wanted privacy and time. I was very hurt by that. I just felt like the world needed to stop.
Upset that her brothers might learn of their mom’s death on Facebook and not from their sister, she called them immediately. For several days, Courtney tried logging in to her social media accounts, but seeing her mother referred to in the past tense overwhelmed her. She wanted to scream to her well-meaning friends, “I am not ready for my mother to be a “was” yet!” Courtney turned off her phone and asked her best friend to become her family’s informal digital proxy by posting updates from the family on Courtney’s Facebook page, including logistical information about the funeral service and burial. In turn, her friend shared with Courtney the many appreciative comments about her mother’s life from social media sites and from the on-line guest book for her mother’s obituary.
Inevitably, time passed, and Courtney began the long journey of grief, incorporating the death of her mother into her own life story, gaining narrative resilience word by word, click by click. Through Facebook, she gained access to memories and stories from the geographically dispersed group of her mom’s friends, even learning from them how much her mom appreciated the sacrifices she had made to care for her. She still views her mom’s Pinterest board, savoring those unique ideas and dreams. Courtney and her brothers have committed to weekly Skype dates, where they check in and stay connected as they each grieve their mom in their own ways. They have already taken the step of memorializing their mother’s Facebook page, mostly to have closure and to ensure her privacy will be protected.
Courtney’s story reminds us that even if we personally plan for the management and bequeathal of our digital assets and story, a trusted loved one will be the one to carry out our wishes. Some families could benefit from legal counsel, but much can be done informally, as we saw with Courtney’s family. The critical first step is recognizing how digital assets can both provide support and — paradoxically — overwhelm without careful management. The next step is deciding how best to use those assets.
Like Courtney, daughters will most likely be the ones to initiate the conversation, but not all of us will have the luxury of time and ability to talk about what we wish. The time to plan for our digital legacy, both assets and story, is now. Far surpassing any monetary value, our digital narrative assets hold tremendous sentimental value for those who will find comfort and meaning from our cloud of digital witnesses.
*Courtney’s name has been changed to protect her privacy. She represents one of the Gen X interview cohort interviewed by Amy Ziettlow and Elizabeth Marquardt for a forthcoming book on 21st century caregiving and grief.
Neil Armstrong may have been imprinting the moon with a famous step, but you are creating everyday a series of footsteps that may live forever — or at least long enough to bother you. You know, your cyber footprint.
The websites that you browse, the emails you sent, receive and forward, the status updates on social networks, the movies you mention having appreciated, even the points your are collecting on online games, .. the list would be long enough.
When speaking of legacy, this footprint often becomes a problem to manage for those who remain. What will become of it? Who can benefit from the online revenue generating you have been generating? Who will pursue the work you had started? What will become of those embarrassing mails you had sent previously?
Previously, people had wills written for their earthly possessions. Your books, photos, all the small souvenirs that you shared with loved ones could be shared with the ones you wanted. But what about your cyber footprint? All of your assets, or most of them, are locked with a password, and services providers don’t usually pass your digital belongings to any other than you.
“The traditional things we have done for estate planning—proof of death, changing titles, all those sorts of things—may need to change in this new context of digital assets,” says Dennis Kennedy, a St. Louis, Missouri, technology attorney who is also a recognized expert on how technology intersects with the law. “One of the last questions you tend to ask is, ‘What happens when somebody dies?’ Nobody is planning to die. Very few people want to think about that and what is going to happen to their stuff, but it has to be done, and it has gotten more complicated with the addition of digital assets.”
That’s why it’s always interesting to have a guide to help you through your issues.
If you have more digital assets which you own, you can also consider getting specific hardware designed to protect digital information. A perfect example would be a hard drive using complete encryption — without the proper password, nothing can be retrieved, and your assets are perfectly safe. You just have to be sure that your executor does know where the storage device is, and has all the keys to unlock it. The cons are simple: the locker must be physically accessible, undamaged (when sometimes defects appear over time, rendering your assets inaccessible), and you will have to physically access it to update it.
Simple: choose a fiduciary and give him, her or them the proper power of attorney, so that they can manage your belongings.
The choice of a will executor for your digital assets, or your “digital executor”, is a critical step in the planning. It can be an executor different from your regular will, or someone who is not in charge of your offline estate. Actually, you’d want to select someone who is very comfortable with technology, to be sure that this person will execute your orders and not make any blunder. Apart from this, it could be a good idea to find someone who is geeky enough to understand what you want, and to apply it. Finally, don’t choose someone who is too close from you. If you need to delete some materials, you don’t want your executor to fail on this because it reminds him or her too much of you.
The person in charge may or may not be aware of your choice, you can arrange the name on your will — but the key and lock to the assets will have to be in a separate list, to be sure you can update it regularly, when changing your passwords. And if you open an account for another service? That’s going to be the same. Just open your lists, add the account, save the file and voila!
“If you haven’t made arrangements in advance, those assets are going to pass to your next of kin. Maybe that’s not what you want—maybe you want to spare the spouse the embarrassment or the pain of it to keep your legacy intact.”
Another advantage of selecting only an executor and to have a separate list will enable you not only to manage your accounts, but you will be able to manage the beneficiaries. An access can be revoked only by changing the password of a file, and saving you the trouble of a trip in the attorney’s office.
“If you have an estate-plan document book, devote one page of it to this. It doesn’t have to be anything fancy,” Ms. Hays says. “If you want [an account] to be ongoing or serve as a memorial, you need to make that known to the person you ask to take care of this. Otherwise, they’ll probably just shut it down.”.
A digital executor can be used to prevent any issue around your death. If you own an online store, like an eBay account, an unscrupulous competitor could use your obituary to make your different accounts closed. Emails could be accessed by anyone smart enough, providing a proof of your death.
Finally, a good thing to do is to integrate the name of this digital executor into your “regular” will — to avoid any potential contestation.