Planning our digital estate
March 25, 2013 by David Shields
When estate planning, most everyone remembers to include instructions for the disposal of typical assets such as bank accounts, property, vehicles, homes and annuities. A growing concern, however, is what to do with a person’s digital assets: emails, social media accounts and online banking, among others.
Few of us would think to mention such details in our wills or trusts. But with a majority of adults now using email and social networking sites on a regular basis, it has become more and more important for us to take these intellectual properties into account when planning our estates.
Not convinced? Consider all of the online activity you participate in. How many email accounts do you have? Social media accounts? Online banking accounts? It’s probably more than you realize. What we share online using any number of websites is as much our property as anything else in our lives.
Consider also that in the past year alone, 580,000 Facebook users died in the U.S. What happens to all of these profiles? Currently, families have only two options. They can either report the death and request that Facebook delete the profile — thereby permanently losing all of the correspondence, which is painfully unthinkable to many friends and family members — or they can request that the profile be “memorialized.” This means that it remains open, allowing friends to continue posting comments and photos, but families have no administrative power. If someone decides to post an unwelcome comment about the deceased, surviving family members can do nothing about it.
The question, then, is who should have control of our digital property once we pass away?
Creating a digital legacy
Last year, the U.S. government urged readers of its blog to write a “social media will” and appoint someone to handle their online accounts once they die.
“Just like a traditional will helps your survivors handle your physical belongings,” it reads, “a social media will spells out how you want your online identity to be handled.”
Good advice, but there is one major complication. Since the contents of a will become public record as soon as they hit probate court, anyone would then be able to hack our email, Facebook, Twitter and Google+ accounts, not to mention our banking accounts, medical records and any other details we shared in the document.
The most straight-forward solution to preventing your intellectual property from slipping out of your family’s fingers once you die is to make arrangements with someone you trust about how to handle your profiles. This informal executor would obviously need access to all usernames and passwords. There are a few online services that store and manage this information, including 1Password and Keepass, but the trick is to keep all of the passwords updated in the system.
Your executor would also need the locations of important content on your computer and instructions on what to do with it. After all, we use our computers now as extensions of our memories. We trust them with the most cherished artifacts of our lives, from personal photos and private writings to financial records and Grandma’s secret recipes.
Should social media estate planning be legislated?
In a few states, it already is, with a few more opening it up for debate.
Right now, the only five states that have a law legislating the posthumous management of social media accounts are Oklahoma, Idaho, Rhode Island, Indiana and Connecticut. Rhode Island and Connecticut’s laws, however, are limited only to email accounts. New Hampshire is currently working on its own legislation, which would permit an executor to have control of a person’s electronic activity after death.
The bill’s sponsor, State Rep. Peter Sullivan, says that such a law would help give families a “sense of closure, a sense of peace.”
Oklahoma’s 2010 law, known as the Digital Property Management After Death law, is one of the country’s most progressive, giving control of a deceased person’s digital accounts to his or her executor, even if such an action breaks a social media site’s user agreement.
Then-legislator Ryan Kiesel, who sponsored the Oklahoma bill, argues that all Americans are entitled to pass their digital property on to an executor.
“The federal government,” Kiesel says, “should pass uniform laws to govern all digital assets because it is quite difficult for an estate to have to navigate endless numbers of digital policies postmortem.”
As uncooperative as Congress has been lately, such a law appears unlikely to be passed any time soon.
Regardless, we must all take responsibility for our digital afterlife, so to speak. Like any property that isn’t titled in a will or trust, surviving friends and family members often (unfortunately) squabble over who has rights to it. Your online property is no different and, where estate planning is concerned, should be treated accordingly.
