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.
“Most people understand the need to protect, and assign, their assets after their death. They know who will care for their children or pets, who will receive the family heirloom brooch, and who will inherit their financial assets. In this day and age, however, there is a new category of assets to consider: digital assets.”
It’s 2013 – do you know what your digital assets are? And more importantly: do you know what will happen to your Facebook page, online bank account, cloud storage of childhood photos, etc. when you’re gone?
How to plan for the transfer of your digital property? The first step is figuring out what you’ve got:
“Do you have electronic property that has value? ‘Value’ is a subjective question. It may mean monetary value. However, it can also mean sentimental value. Electronic accounts that contain information of a personal or sensitive nature may also be ‘valuable’ to the extent that it is vital to you to either prohibit or restrict access to such information on your death.”
Then follow these three rules of thumb to incorporate digital assets into your estate plan:
1. Make your wishes known:
“[A] plan might include a comprehensive inventory of such assets, and the relevant login credentials. It would also document your wishes with respect to specific assets, and explore the logistics by which your Executor can secure such assets and fulfill your wishes. For example, you may wish to instruct your Executor to delete your email accounts without reading or publishing the contents, or direct your Executor to access your Facebook account and obtain a download of all of the account contents for the interest and records of your family (currently Facebook accounts cannot be continued on death of the holder).”
2. Don’t force your heirs to rely on an incomplete paper trail:
“… consider the number of accounts you may have for which you have no paper records. As we become more environmentally friendly and try to eliminate paper, we are often eliminating many important records which were once accessible. Would your personal representative know of online banking accounts for which you don’t have a debit card or checks (ie, no paper evidence)?”
3. Consider outsourcing management of your passwords:
“In recent years, several companies have established Web-based services that store user names, passwords and other digital assets and make them available to your loved ones according to your instructions. For example, a service might release your information after two or more trusted ‘verifiers’ confirm that you’ve died or become incapacitated.”
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.
Why do you need to consider the becoming of your digital assets upon your passing? Just because there are more than what you actually think. If you can’t list them all, chances are that they will not be listed by someone else, and precious heritage can finally be lost for everyone. Or, if there are things that you wish were deleted, but were not, your last message may not be the one you wished for. Inside the different assets type, you have:
Business accounts: let’s say you own an account for any business. It’s full of your clients information, invoices and different bills. These information are critical for your business partners, colleagues or the whole team. For a doctor, it may contain the life history of your patients, with full, potentially life-saving, information.
Social media accounts: obviously, you won’t be able to communicate with your network, but the social networks do have a treasure inside: old exchanges, pictures, videos and other assets. And they can be the base of an online memorial.
Financial assets: this one is quite self-explanatory. Banks are more and more accessible via web interfaces, and may have services storing online currency, like bitcoins. And we’re not speaking about the Amazon, eBay, Paypal websites..
and last but not least:
Personal assets: can you list the totality of your services? I guess not.. Pictures, videos, emails, texts, mms, smartphone apps, … And why not computers, locked by passwords, or medical records, legal files, …