Don't Let Your Digital Assets Die With You

Digital Estate Planning Law

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.

Identity Theft Safeguard

What Does Managing a Loved One’s Digital Legacy Look Like?

With digital privacy in the media spotlight and digital estate planning resources entering our mainstream consciousness, many of us have been inspired to think about the end of life and our online selves. And we should. Hundreds of thousands of Facebook users die each year, the average American believes that she has almost $55,000 worth of digital assets, though most of us — 70 percent — don’t even have a will, and few states have laws governing what happens to our internet accounts when we die. The sheer magnitude of our digital lives can overwhelm us into inaction, thus we need real life inspiration. What does managing a loved one’s digital legacy really look like?

Digital planning
Digital planning

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.

Learn How to Preserve Your Data with Take Control of Your Digital Legacy

US digital legacy laws in 2013

New Hampshire recently gave some thoughts about what happens to your facebook page when you die. More precisely, legislation is being changed so that an estate executor would be in a position to get a hold on the different social networks, emails, … after the death of the owner – which is something that is not the custom today.

Peter Sullivan is the State Rep. who started the movement of digital estate planning in the New Hampshire House of Representatives, which accepted this bill 222 to 128. The goal of these legislation is namely to give a better control of the situation to the persons who just suffered from a loss.

The other states so far are Rhode Island, Connecticut, Oklahoma, Idaho, and Indiana. The first and the second were the first states to introduce a control of digital legacy, but at the same time only applied on a limited number of services. Oklahoma was supported by a state legislator, Ryan Kiesel. Kiesel helped draft the texts, but according to his own advice, the issue must be addressed to by the federal government.

 

Let’s have a quick look at the different states and statuses. Here are attached links to the different texts concerning the current laws (as of beginning of 2013).

 

Rhode Island: The legislation simply allows an executor to access the accounts of emails of the departed.

Source: http://webserver.rilin.state.ri.us/Statutes/TITLE33/33-27/33-27-3.htm

 

Connecticut : The same applies – and still the question of social networks is not raised.

Source: http://www.cga.ct.gov/2005/act/Pa/2005PA-00136-R00SB-00262-PA.htm

 

Indiana: The executor can be granted access to “information being stored online”.

Source: http://www.in.gov/legislative/ic/code/title29/ar1/ch13.html

 

Okhlahoma: The text gives the executor (or an estate administrator) the right to be granted the access to emails, as well as social networks, accounts.

Source: http://legiscan.com/OK/bill/HB2800/2010

 

Idaho: The Idaho text allows the executor to take over and control the account of the decedent, including the Facebook, Twitter, as well as any email provider. The major difference resides in the fact that the executor can resume the use of the account, even on a posthumous base.

Source: http://legislature.idaho.gov/legislation/2011/S1044.pdf

 

Digital death is still a problem. A widow’s battle to access her husband’s Apple account

Practical Problems for Planning and Management

  1. Unawareness. In order for the fiduciary to take steps essential to property handle the belongings of the property, the fiduciary has to pay attention to these belongings’ existence.
  2. Digital Bureaucracy. Many of the businesses that function custodians of digital media, accounts, and companies, have created some type of aid for the fiduciaries and the members of the family of the deceased. Unfortunately, as every firm is performing underneath the authorized restraints and uncertainty nonetheless surrounding the digital estate planning, there isn’t any uniformity in approaches chosen by every firm, which makes it tough to search out the suitable method and navigate by way of the procedures. The procedures a person should observe to entry the info pertaining to the deceased vary from sending a standard letter with a duplicate of a demise certificates, will, authorities IDs, private contact data, proof of relationship, and different verifying data of the deceased, to sending an electronic mail with sure data or proof of being appointed a fiduciary, to filling out an internet type with no further verification. Apart from time delay, a few of these approaches add a considerable quantity of paperwork.
  3. Passwords and PIN Codes. Passwords are the important thing to entry our many units and recordsdata. Our telephones are password protected, our computer systems and emails are password protected, all of our on-line monetary accounts are password protected, and even now our flash drives will be password protected. Without entry to the passwords, the Digital Assets saved in these gadgets and in these on-line areas are of lowered if any worth.
  4. Encryption. 32-bit, sixty four-bit, 128-bit, and 256-bit encryption are all ranges of encryption used to additional safe domestically or remotely saved information, or knowledge that’s being transported on-line from a service supplier to your pc or cellphone. Fiduciaries who’re unable to seek out, guess or in any other case use passwords to open secured accounts are left with the choice of attempting to interrupt the encryption that secures the digital asset. However, that is simpler mentioned than executed! As reported by Seagate, a number one expertise firm, in 2008, a file encrypted with 128-bit AES encryption has over 340,000,000,000,000,000,000,000,000,000,000,000,000 potential mixtures, or sufficient to maintain 70 billion computer systems busy computing for over seventy seven billion years at 2008 computing speeds to guess the right key to unlock the encryption. With this in thoughts, cracking or guess in password appears a complete lot extra life like than cracking the encryption. In case you had been questioning, it’s believed that the present 256 AES encryption will be ample encryption safety till roughly the yr 2031, when pc will be quick sufficient that this degree of encryption will now not be robust sufficient.
  5. CFAA Criminal Laws. As famous above, the Computer Fraud and Abuse Act stands in the way in which of Fiduciaries who try and entry on-line accounts with out acceptable authorization.
  6. SCA Privacy legal guidelines. As famous above, the Stored Communications Act prohibits the disclosure of a shopper’s electronically saved info until the fiduciary meets one of many listed exemptions, and even then the service supplier might chorus from disclosing the knowledge or granting entry to the saved info.