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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.•

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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