ILNews

E-state planning

Back to TopCommentsE-mailPrintBookmark and Share
Indiana Lawyer Focus

Will your Facebook account, online presence and virtual world live on after you?

The rise of social media and proliferation of online accounts are posing such real-life questions for lawyers who concentrate in estate planning. But it remains an evolving question how wills, trusts and power of attorney grants will address these and other staples of the Internet age.

“Technology is kind of outpacing the law,” said Lance Like of the Like Law Group in Bloomington. Like said about 80 percent of his practice involves estate planning of some kind. Internet “property” and the content of online domains hasn’t yet been much of an issue, he said, but it will be.

“I think we need to ask (clients) to address it, and if they say, ‘Well, I don’t want to,’ we can at least reflect that we talked to them about it,” said Indianapolis attorney Richard Mann of Richard A. Mann P.C.

Indiana is one of just five states that has adopted some form of a “digital estate” law. I.C. 29-1-13-1.1 enacted in 2007 provides for the handling of electronically stored documents of the deceased. Connecticut, Idaho, Oklahoma and Rhode Island also have passed some form of digital estate law, according to www.digitalestateresource.com.

Indiana’s statute defines a “custodian” of electronically stored documents as “any person who electronically stores the documents or information of another person.” The statute also requires custodians to provide documents to the representative of an estate upon the representative’s request and upon receipt of a death certificate.
 

farrell-kenan-mug Farrell

Kenan Farrell is a solo practitioner in Indianapolis whose firm concentrates in areas of intellectual property and technology. “It will become common practice for estate attorneys to inquire about and include valuable online property among the testator’s estate,” he said in an email.

“If there’s valuable intellectual property (images, documents, songs) stored anywhere on their computer or in the cloud, this should be specifically addressed or it could be lost,” he said. “In the absence of proper instructions from the testator, the risk is that much of the online information will simply go unnoticed and forgotten.”


like-lance-mug Like

Indiana’s statute should be interpreted to include personal account contents of developing cloud computing technologies, Mann and others said. Mann also reads the statute to say that websites are obligated to preserve data for a time after a person’s death.

The law “arguably says Facebook can’t close your account for two years” after notification of a user’s death, Mann said.

Facebook – the largest online social network – has addressed in its own way what happens to users’ accounts.

“Our standard procedure when we receive a report that a user is deceased is to memorialize the account, which restricts profile and search privacy to friends only, but leaves the profile up so that friends and family can leave posts in remembrance,” Facebook spokeswoman Carolyn Thomas said in an email. The site requires proof of death to memorialize an account.

“Also, we do honor requests from close family members to deactivate the account, which removes the profile and associated information from the site,” Thomas said.

But Facebook and most other online accounts require passwords that can be tricky to pass on. Like said he’s come up with a way to handle that.

Along with the documentation given to estate representatives, he said he provides an optional form where online account information, passwords and logins can be committed to paper if a represented party so chooses. “I think the better practice is to have some type of secure digital locker for all those passwords and information,” Like said.


ryznar-margaret-mug Ryznar

Indiana University Robert H. McKinney School of Law professor Margaret Ryznar teaches and researches in the area of trusts and estates and said such a practice is advisable given current law and practice.

“The best way to address it is to leave instructions to the executor,” Ryznar said. That would include account passwords and logins as well as the wishes of the estate for those websites.

Farrell said people may wish to store their passwords in a safe electronic document such as a password-protected Excel spreadsheet. “In addition to sharing passwords, you can provide instructions on what you’d like done with the account, such as closing it down, giving the login info to somebody else to maintain the account, or perhaps post a ‘Final Goodbye’ statement,” he said. 

What’s it worth to you?

Experts said the practice is clearer where tangible online assets are involved. If someone has a PayPal account with a cash balance or a revenue-generating enterprise, for example, those assets should be accounted for in a will or estate plan. When the issue is more on the lines of who has access to someone’s personal photos on a cloud server, most experts believe the 2007 Indiana statute would grant that authority to an estate’s personal representative.

“If you’ve got a blog or something, I could see where that’s an issue” for consideration in a will or trust, Mann said.

Ryznar said there is movement on digital estate law around the country. “Other states may be prompted to enact similar legislation upon the results of a study committee recently approved by the Uniform Law Commission to consider the questions of fiduciary powers and authority to access digital information,” she said.

“As a practical matter, however, the most direct way for people to ensure their final wishes are met regarding online and social media accounts is to instruct their executors, in written form to be included with other estate planning documents, what should be done with online accounts and to list any such accounts, their web addresses, and their passwords,” Ryznar said.

Like has been in practice since 1993 – coincidentally, the year that President Bill Clinton and Vice President Al Gore received email addresses. There were about 1 million Internet addresses on the World Wide Web then; there are almost 1,000 times that many now.

Not quite 20 years later, Like said he’s surprised at the level of Internet adoption by all ages.

“Most of my clients are folks that are 60 on up, but even in that category, there are more than a few that really have everything online,” he said. “Some really surprise me – almost all their bills they’re paying online.”

Even that can be a consideration when it comes to estate planning. He advises clients with online bank accounts or online bill paying to provide account information to their children or estate representatives. That way, at the time an executor takes control of an estate, the accounts can be converted to generate paper bills that can be paid through a trust.

“As this becomes more common and the population ages, it’s going to be an issue for more and more people,” Like said.•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  2. A high ranking bureaucrat with Ind sup court is heading up an organization celebrating the formal N word!!! She must resign and denounce! http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  3. ND2019, don't try to confuse the Left with facts. Their ideologies trump facts, trump due process, trump court rules, even trump federal statutes. I hold the proof if interested. Facts matter only to those who are not on an agenda-first mission.

  4. OK so I'll make this as short as I can. I got a call that my daughter was smoking in the bathroom only her and one other girl was questioned mind you four others left before them anyways they proceeded to interrogate my daughter about smoking and all this time I nor my parents got a phone call,they proceeded to go through her belongings and also pretty much striped searched my daughter including from what my mother said they looked at her Brest without my consent. I am furious also a couple months ago my son hurt his foot and I was never called and it got worse during the day but the way some of the teachers have been treating my kids they are not comfortable going to them because they feel like they are mean or don't care. This is unacceptable in my mind i should be able to send my kids to school without worry but now I worry how the adults there are treating them. I have a lot more but I wanted to know do I have any attempt at a lawsuit because like I said there is more that's just some of what my kids are going through. Please respond. Sincerely concerned single parent

  5. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

ADVERTISEMENT