The New World of “Digital Legacy”

The New World of “Digital Legacy”

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Robert Silverman Digital Legacy
Robert Silverman Digital Legacy

By Robert J. Silverman, Attorney at Law

In our increasingly digital world, we are facing new questions about what to do with our social media, websites and Internet applications when we’re gone. As Internet companies refine their rules and policies, and legislatures enact new statutes, there are a growing number of alternatives as to our “digital legacy”. While much of this will be handled by individuals outside of the formal estate planning realm, some clients will also choose to incorporate related terms into their estate planning documents. We in the legal profession stand ready to accommodate in this regard.

Social media and other prominent websites are paying more attention to what happens to a user’s account when he or she dies. Service providers are establishing more detailed policies and procedures. New legislation has even been enacted.

As social media plays a bigger role in the lives of a growing number of people, companies like Facebook and Google are starting to respond to the important, but often sensitive and difficult, aspect of user legacy. In this very new and rapidly developing arena, applicable law is very sparse. As a result, companies are often making up their own rules.

This is not a significant part of the formal estate planning process that clients typically discuss with their estate planning attorneys. Rarely are provisions about digital assets included in estate planning documents, such as Wills or Living Trusts. Nevertheless: a) clients have the option of having such provisions included in their documents; and b) clients will undoubtedly choose to do so more often in the future. Mostly, Internet users who are “planners” will become familiar with the post-death procedures that apply to social media and other forms of their online identity. Then, they will submit the required forms to ensure that their post-death wishes are followed.

Internet services are grappling with tough questions and trying to determine the right balance between respecting a user’s privacy and being responsive to the wishes and requests of grieving loved ones. Google was among the early major Internet companies to deal with digital afterlife matters. They enabled users to choose “digital heirs” for various Internet services including Gmail and cloud storage. These digital heirs were labeled “inactive account managers”.

Facebook also made a recent, high profile splash by changing its long-time policy of simply freezing the account of a deceased user, leaving up the decedent’s posts and pictures, and maintaining the privacy setting that the decedent had established – a process Facebook called “memorialization”. Facebook announced that users may now designate a “legacy contact” – a person the user chooses to manage certain parts of a deceased user’s account posthumously. Alternatively, members can choose to have their Facebook presence deleted entirely once they have died.

Facebook legacy contacts can turn a deceased person’s Facebook page into what some people refer to as a “digital gravestone”. They are able to display posts with a memorialized profile picture, and can even respond to new friend requests on behalf of the deceased user. Many other options are available to the legacy contact as long as the deceased user granted prior permission for such options.

Fortunately, in lieu of a user designating a legacy contact, the user may designate a “digital heir” in his or her Will, and Facebook will honor that Will provision.

It may be a bit mind-boggling that, beyond your existing “to do” list (that’s probably quite long as it is), you now have to think about who you want in charge of your social media accounts and Internet activity after you die. The good news is that now you at least have more of a choice about the legacy you want for your digital assets – just like the myriad choices you have about creating a legacy for your conventional assets in your estate planning documents.

State law will undoubtedly develop rapidly in the area of succession, management and privacy as they relate to digital assets. Delaware recently passed legislation known as “Fiduciary Access to Digital Assets and Digital Accounts Act” and about a dozen states are considering enacting a similar law. Evidently, this legislation was a response to the policy of many large Internet companies who have played things safe by heavily restricting access to a decedent’s online accounts. Under the new Delaware law, unless a decedent instructed otherwise, online accounts are accessible by an Executor without their needing to spend the considerable time, effort and money to obtain a court order.

While this Delaware law may seem perfectly logical and appropriate, it is somewhat controversial. A significant number of people and Internet companies insist that the law grants power to Executors that is too broad and violates both the decedent’s privacy rights and existing federal privacy law.

Stay tuned for new legal developments in this interesting area. Meanwhile, give some thought to how you may want your digital assets handled… just don’t neglect to establish or review and update your traditional legacy (estate) planning as well!

This article is intended to provide information of a general nature, and should not be relied upon as legal, tax, financial and/or business advice. Readers should obtain and rely upon specific advice only from their own qualified professional advisors. This communication is not intended or written to be used, for the purpose of: i) avoiding penalties under the Internal Revenue Code; or ii) promoting, marketing, or recommending to another party any matters addressed herein.

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Let us ask you two questions: do you have any account? Have you named your Facebook / Twitter / LinkedIn heir yet? If the answer to the last question is no, you might be interested in reading more. Obviously, we do not want you to be thinking of your death for the 2 minutes that will take you to read this blog, but this is something that will happen to us all.

What happens to my account when I die?

Early last year Facebook allowed their users in the United States to plan what do they wanted to do with their accounts once they have died. This facility was soon rolled out to the rest of the world and brought to mind the importance of what will happen to a person’s once that person has passed away. We could define “digital assets” as everything we upload to the internet and, along with other assets, it is important to plan what we want to do with them once we are deceased.

Digital assets must be included in people’s wills with the instructions that the executors should carry out after a person has passed away.

How to treat digital assets?

Some of the include in their terms and conditions the possibility to say how this specific asset will be dealt with after a person’s death or when there has been no activity in the account for a certain period of time.

  • Photos and videos online

Generally, these assets will only have sentimental value so they can be left to family and as a gift of personal possession.

This, obviously, is different if such photos or videos have any monetary value.

There are some rules for certain platforms. For example, removes images of a deceased person in restricted circumstances.

  • Emails or the information stored in them

Here some people might have information that could cause distress to their loved ones after their death. This information should be deleted in lifetime.

People who own businesses should carefully handle how the emails will be accessed after death. Although this can lead in a more in depth discussion relating to business succession plans.

It should be treated identically to paper records and it covers everything from blogs to domain names, gaming avatars, online books.

This is a short guide on how to treat your digital assets. Should you need more information, you can contact our expert team of solicitors dealing with wills. They can guide you on what to do with your online assets with advice tailored to your own circumstances and needs.

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