Facebook has been around for nearly a decade already. As an attorney, do you ever wonder what happens to your clients’ Facebook profiles and the content posted therein, when they die? What about your client’s other digital accounts?
Increasingly, our clients compile a complex digital profile on the ever-popular social media sites now embedded into the internet. Many people use these sites as their primary form of communication. They are also storing a significant amount of valuable personal and professional data on these sites.
How do we assist our clients with the task of securing and dismantling these often extensive electronic profiles? The answer lies in part with the terms of service (TOS) applicable to the various sites. The TOS for Facebook, however, are contradictory and not very helpful in this regard. In one provision, for example, you agree that you will not provide third party access to your account. In another provision, on the other hand, you agree not to transfer any of your rights under the TOS to a third party without Facebook’s (apparently written) consent.
Have you ever known a client to obtain written consent from Facebook for anything? Apparently, most folks utilize one of two methods to shut down a decedent’s account on Facebook. Some accounts are “memorialized”–frozen to new friend requests with the deceased’s site remaining as it was at the time of death. Facebook has this link on their help page addressing death. Another option is to use the person’s login information to access the settings and queue the account for deletion. There is a 14-day wait period for this process.
Setting Facebook and the terms of service of the various sites aside for the moment, you should consider directing your client to compile a comprehensive list of usernames and passwords. This is particularly true of sites that have pecuniary value such as electronic brokerage accounts. In case you have not noticed, such e-brokerage accounts have online communities for their customers complete with user nicknames, blogs, and other content-related platforms. Obviously, these sites also have TOS that you should save to your client’s file.
Consider that most of your clients will have all or a portion of the following electronic accounts, or digital assets:
Social media profiles such as Facebook, LinkedIn, YouTube and a host of others
Email profiles and communications (Most people have at least two email accounts.)
Professional profiles (I maintain at least a half dozen, and counting)
Bank accounts, loan accounts, and mortgage accounts
Investment accounts such as E-Trade or Ameritrade, or other brokerage accounts
Uploaded photos
Uploaded articles
Education accounts, including alumni account profiles
Gaming sites
Digital media accounts
Cloud computing profiles or accounts
Online retail store accounts, particularly those with a social media angle such as iTunes and Amazon
There are other examples, to be sure. Any site that you’ve had to log in to, create a profile for, post content on, or place an order from is a component of your client’s digital inventory.
There are, of course, web-based products and services that assist with the management of your digital profile:
•roboform.com
•stickypassword.com
•securesafe.com
The first step in managing your client’s digital legacy is to list all of their online “assets” and list the usernames and passwords associated with those accounts. Your client will be saving the attorney or a family member or friend untold hours on the phone, or on the computer, when they try to figure it out after-the-fact.
Once you have compiled your client’s all-important digital inventory, the next step is to reference this list and attach it to a power of attorney document. This will allow your attorney-in-fact to manage your client’s accounts in the event of a temporary absence or incapacity. The same goes for your client’s will; include an instructional paragraph referencing and attaching the client’s digital inventory discussed above.
If no instructions are provided, most states do not yet have laws governing the posthumous management of a person’s online “assets.” So far, only Oklahoma and Idaho have such laws, with Nebraska not far behind. The question remains, however: if your client dies “digitally intestate,” what happens to her digital profile? That depends on the particular platform and the applicable TOS. Some folks, however, do not have any next-of-kin. What then?
There are options for the digitally proactive client. Some posthumous services will send an email composed by you, or by your designated personal representative, to a designated list of contacts. Here is a sample list of such services:
Online-Legacy.com
mywonderfullife.com
ownlegacy.com
Call it another characteristic of our modern life; once we are gone, our digital profile lives on for a time. In this fast-paced era, however, it’s amazing how fast such a profile will become outdated. Taking the right steps will allow you to manage your client’s electronic profile after death in an efficient manner that will achieve client satisfaction from the family members with whom you will need to work.