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Ask The Leader By: Daniel A. Gwinn, Esq.

| September 4, 2018

WHEN WE DIE BUT OUR FACEBOOK PAGE DOESN’T: SOCIAL MEDIA’S EVERLASTING LIFE

QUESTION:  My best friend died unexpectedly last spring. It has been hard to adjust to his being gone — and even harder since I am constantly reminded of him when I’m on Facebook. His picture keeps popping up online as someone I might know. Is there a way to get social media to close down a site after someone dies?

ANSWER:     This issue illustrates just one more reason everyone should have an updated estate plan! 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, more and more people communicate, share, and transact 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.

There is no death on social media; most sites keep accounts open, unless specific actions are taken to shut them down. And, with access to sites password-protected, the best person to take those actions is, unfortunately, the person who died. But, thanks to the passage of the Fiduciary Access to Digital Assets Act (FADAA) in 2016, there are now more ways to get around this Catch-22.

First, digital assets – a person’s digital information and online presence – should be treated like any other assets (jewelry, cash, valuable books, antiques) and specifically addressed in an estate plan. All digital accounts, including online services, and access to such accounts, should be mentioned in a will or trust, and a personal representative or “digital custodian” named to deal with them. (Note that since wills and trusts can be made public, so you should not set out passwords in the will or trust itself.) If you take this step, you can save your friends and family the heartbreak of unexpected pop-ups from an electronic-you years after you’re gone, and also prevent hackers or frauds from assuming your identity or selling your information.

Before the legislature passed FADAA, even with a will explicitly listing all digital accounts, there was no quick way for a personal representative to log in to these accounts. The personal representative would have to contact each online vendor, and provide proof of death, and proof of authority to act on your behalf.

One reason for the difficulty is 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. For instance, to close a Pinterest account, a personal representative or close family member must provide his or her name, the full name and email address of the decedent, a link to the Pinterest account, evidence of death (death certificate, obituary), and proof of the relationship that gives authority to manage the account. After all this, Pinterest will deactivate the account. Twitter will deactivate an account after six months of inactivity, but the procedure for closing a Twitter account is as involved as that for deactivating a Pinterest account.

The Fiduciary Access to Digital Assets Act makes it easier for people to direct how they want digital assets handled by allowing them to 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, and take charge of how your online life is managed after death, you have to take that first step: Name someone to be your digital custodian and describe what you want done with your digital assets. You may want to ask an attorney to prepare your estate plan and ensure your assets – digital and physical – are protected for your heirs.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your 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.gwinnlegal.com.

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the
person submitting the question and GWINN LEGAL PLLC. To view previous columns,
please visit our website.

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

Attorney and Counselor at Law
GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinnlegal.com

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