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ASK THE LAWYER By: Daniel A. Gwinn, Esq.

| April 4, 2016

Dan Gwinn New Head ShotTrying to access and remove internet activity, pictures, and postings of a deceased loved one? It just became easier.

My sister passed away a couple of months ago. We’d like to remove all her information from Facebook and other online sites like LinkedIn and Instagram, and keep copies of the pictures and stories she posted over the years for family use, but we’re running into a brick wall. What do we do?

If your sister did not leave directions in her will on how to treat this digital information – her digital assets – the process of getting access could be long and slow. Until recently, even with a will explicitly listing all digital accounts, there was no quick for a “personal representative” to get into these accounts. Your sister’s personal representative, if named, will have to contact each online vendor, and prove the fact of her death. If she did not discuss what she wanted done with the information, it will most likely be removed and deleted.

How we treat our personal information has changed drastically in just the last 30 years, and the law is only just beginning to catch up. Where a previous generation might have letters and keepsakes hidden in a box in the attic, this generation – people like your sister — communicates, shares, and transacts business digitally. But where a box in the attic could be picked up, and its treasure trove of photos and memorabilia given to the decedent’s heirs, getting these digital assets has not been easy.

One reason for the difficulty has been that the Terms of Agreement of many sites — terms which so many people accept without fully reading – may deny access to anyone but the original user. The second reason is that different digital businesses have different requirements for a personal representative to gain access to the accounts, making the process a drawn-out and cumbersome affair.

However, last month, Michigan passed a new law that makes it easier for people to direct how they want digital assets handled. First, if they’re technologically-savvy, they can use an “online tool to direct a digital custodian to disclose or not disclose” the assets. For people who are not comfortable using an online tool, the Act will let them “allow or prohibit in a will, trust, power of attorney, or other record disclosure to a fiduciary some or all of the user’s digital assets” and this direction will “override any contrary provision in a terms-of-service agreement.” The personal representative will no longer have to jump through the hoops of a host of different digital vendors in order to get access to a decedent’s digital information, photos, and writing; the entire process will be streamlined.

However, to take advantage of the enhanced access the Act gives to personal representatives and trustees, they must be named in a will, and the direction for disposing of the digital assets described in detail. If you do not yet have a will, you may wish to consult with an attorney, to ensure your assets – digital and physical – are protected for your heirs.

The lawyers at GWINN TAURIAINEN PLLC are experienced estate planning attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about estate planning or your other legal needs. For consideration of your questions, in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law

GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinntauriainenlaw.com

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