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There are very few individuals without a digital footprint anymore. From social networks like Facebook, Linkedin, Instagram, Twitch.tv and Twitter, blogs and licensed domain names, email, music, photos, seller accounts on eBay, Amazon, or Itsy, gaming accounts, even your financial, utility, and medical accounts are all part of your digital footprint. When most of us created these accounts, we blithely accepted the End User License Agreement (EULA) without much thought to when we would no longer be around to manage their content and activity. However, a EULA designates in detail the rights and restrictions that apply when using the software known as terms of service (TOS). Most EULA’s are a standard form of contract, a contract of adhesion, which is known to exploit unequal power relationships. A user has no option to negotiate the terms of a EULA if they want to use the software.
When you create your will and its associated documents like a durable power of attorney (in the event you become incapacitated) it is prudent to include digital assets and a designation for someone to access your online accounts and manage their activity. Without specific instructions, most of your online accounts will not pass through the typical estate planning devices like trusts and wills because they are not your property. Still, they are very representative of your being. Since most TOS are non-transferable, you will likely be unable to transfer the “ownership” of your online accounts legally. However, you can still plan for how they should be handled when you die.
In terms of Facebook and other social network platforms, each company has its policy regarding the account of the deceased. Facebook, for example, will permit your account to be placed in a “memorial” status so that it can be viewed, and loved ones can leave memorial messages. Other social networking sites will delete or deactivate your account. If the social network is not appraised of your death, the company won’t know for a while, allowing someone to make changes to your account after your death, perhaps even posting a final status or update of your choosing. Though this is in opposition to most social networking platform policies, it is difficult for online companies to know about and monitor user activity in the event of death.
Your executor should inform readers of a blog or other licensed domain names you maintained while alive. A licensed domain name should be transferred or ended as continued licensing payment makes no sense. The content of these sites should be removed or archived. If you belong to online communities such as a book group or community list serve, you may also choose to leave a final message or have your executor notify the group of your passing.
If you store movies, music, photos, eBooks, or other digital online files, your executor should have access to the files and carry out your wishes as to what to do with them. If you do not leave access to your online accounts, they will eventually become disabled due to inactivity, and no one will have access to the files. In the event you own the data, i.e., personal photos, you can use your will or living trust to leave them to a loved one or a friend. You will have to leave detailed descriptions (My trip to Paris) for photos. As far as purchased online music or eBooks it is not the same as owning a physical CD or book. Software or digital content does not permit acquisition of ownership rights. This means the money you paid for the online content was more of a subscription service solely for your use and not transferable upon your death. Your virtual music and film library will die with you.
If you are an online seller on eBay, Amazon, Itsy, or the like, leave specific instructions about what to do with your online store. You may leave all profits that continue to come in and the stock items you sell through your will or living trust. When the company knows of your death, your executor will have no power over the account itself, but you can make provisions for the profit and stock items to be bequeathed. If you want someone to take over your online store after you die, you will need to reference the TOS of the company. Most do not allow accounts to transfer; however, the new “owner” can open a new account and reimagine your storefront.
Financial, utility, and medical accounts should all be addressed very clearly in your digital will. Leave instructions as to what website, username, and password are for each account. Also, leave written instructions about what to do with each of them. Regarding your financial accounts, their contents will be addressed in your will or trust, but your executor will have to access these accounts to wrap up your estate. These accounts include checking and savings accounts, mortgage, life insurance, and retirement accounts, as well as phone, cable, gas, and electric bills, tax preparation services, medical accounts, and more.
Your online presence requires digital legacy planning. Take a good look at all of your online accounts and be sure to leave reliable access to them and instructions for your executor. Contact our Houston office at 713-336-7200 for assistance in drafting appropriate planning documents to deal with these assets.
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