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Your digital legacy in the estate planning and probate process - by Daniel L. O’Neil

by News Editor
in Blog
on 12 April 2016
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Following up on our discussion of the perils of social media last week this week we are talking about the good things: our fond memories that we store exclusively online and in the cloud these days.

With our increasing reliance on digital life to store everything from photos to other good memories, a new wrinkle has developed in the estate planning world on how to handle digital accounts – how to plan for the end, and how to effect the transition to the significant people in their life that they leave behind.

Some lawyers ignore the topic altogether because they don’t appreciate the inherent value that goes along with the life that is lived online and the memories it leaves behind – the kind of life that just a generation ago used to be documented with Polaroid photos and filled photo albums. Even though it’s not tangible chattel families can still devolve into heated arguments about what happens next, especially if there is not a plan in place on what should happen with computer files, photo albums, and other documents of family/friend/lover importance.

For Creatives that have slightly different estate planning needs in the space they occupy as the creative class, there is quite a bit of value embedded in their social media accounts – it might be digital art work or prints stored in the iCloud that they are working on, or as part of the family legacy it might have less economic value but significantly more value for the family to retain. It depends on the client and how active they are on the internet with curated accounts, blogs, cloud space, and other resources.

Appointing someone to take over your accounts (to close them down, like with a facebook – or perhaps to take over management, like with a flickr of family photos) is a careful consideration since they are not exactly a fiduciary, but they are not exactly not a fiduciary. There are not the restrictions for Executors (no felonies, appointment of registered agent if out of state, etc.) but we typically want some of the same good judgment to either follow instructions to close down accounts or transition them to family members.

Something you might know about is that facebook is making this easier for everyone to facilitate the conversation on the facebook account at least. The hope is that how easy it is made on facebook will remove “the sting” of having the conversation with close family and friends about what should happen with your other items of financial importance and pieces of the legacy you will leave behind, and this removes the impetus of “having to talk to a lawyer” to figure out the finer details with a Will, trust documents, deeds, and other necessary estate planning documents.

When someone we care about passes away we still need to process and deal with seeing their accounts remaining online like nothing happened. This can be avoided easily if someone appropriate is given access to the accounts to professionally tend to them to do the right thing. A certain family member that offensively created a facebook account for my dying grandmother so she could “get online” in her last days didn’t do the right thing to delete the account when she passed away more than two years ago; it’s still online every time I have to go on facebook to review a new friend request. When my best friend, a frat brother whose company I cherished, committed suicide two years ago his family was so mortified by the circumstances they still have not bothered to acknowledge anything that transpired, let alone delete his account since they had the only access to his smartphone and laptop he left his accounts logged in on behind.

If you are so inclined, you can avoid these frustrating and dispiriting real life scenarios by clicking a few buttons on facebook. Here is how you do it if you are on the full desktop website for facebook:

Step 1: Click on the downward triangle on the top blue bar of facebook. Scroll down to “Settings” and click it. 

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 Step 2: Click on “Security” on the left side of the page that pops up and scroll down to “Legacy Contact” down on the long row.

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Step 3: Click “Edit” on LEGACY CONTACT and follow the instructions to add a friend as legacy contact and/or to check the box to have your account deleted instead.

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 It is your decision to tell the person now or not. We always leave that decision up to you, but if you are an estate planning client of this firm we tell you what you think might be best based on what we know about you, your family, your friends, your business, and your place in the community.

We have a variety of ways to include transition of your digital accounts at death the same as we would help you transfer real estate or make other conveyances at life, or in death. It all depends on what you think is important and we will help you get to where you want to go with your digital life, just as much as with more “old school” financial assets. We’re here to help protect your family, facilitate the transfer of family wealth, and to preserve your legacy in the community. Give us a call today if we can help you put together an appropriate plan today.

713-227-1717