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Oregon Law Lets Families Maintain Facebook Accounts for Deceased Relatives

Man in cafeOregon Governor Kate Brown recently signed SB 1554 into law. It permits legal access to digital assets, as reported by kitv.com in a recent article, "Governor signs new law which protects digital assets."
In order to gain this access, an individual must affirmatively state in his or her estate planning documents that they want a fiduciary to have online access. If not, it defaults to the terms of service agreements.
A mother who lost her son 10 years ago after a motorcycle accident wanted to access his Facebook account as a tribute to him.
"I wanted to keep it up and running for at least a year," Karen Williams said. "So [friends and family] can come back to it and it could be there for the first year anniversary."
Williams said Facebook would not permit her to keep her son's page. Even worse, the company deleted the page. She said the problem was that there wasn't anyone to oversee it and—at that point in time—there were no options to allow someone to access an account or delete it.
It's important to be proactive and decide if your online accounts are of such value that you have to do something about it, like put it in your power of attorney agreement or estate planning documents.
The new law goes into effect January 1, 2017.
Reference: kitv.com (March 8, 2016) "Governor signs new law which protects digital assets"

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How Do I Leave my Social Media Account in My Will?

Bigstock-Hand-Holding-A-Social-Media-D-30332120 “You have to plan ahead… As more wealth moves into the cloud, good luck tracking this stuff.”

Andrew Magliochetti always feared dying without an estate plan, so in his 20s, he prepared a will. In addition, he listed his digital assets, which include digitized family movies and social media accounts, plus some assets that are more esoteric, like digital currencies and domain names. Magliochetti then stored his passwords, including those for Facebook and Twitter, on a password manager that his brother, who is his estate executor, could easily find. He uploaded family photos and movies to the file-hosting service so that they are easy to share.

Many people neglect to include digital effects in their estate plans, which can be a huge mistake, as valuable assets may go unnoticed, or money and time might be spent attempting to find them.

There are some assets like digital currencies, video game characters, and Internet domain names that exist only in cyberspace. You can’t put these in a safety deposit box: they can be overlooked because they aren’t as tangible. These days, folks are acquiring more digital assets like Facebook photos or email addresses all the time. However, getting access to social media accounts can be difficult because laws governing digital assets vary by state. Online sites concerned with user privacy have drastically different terms and conditions that sometimes exclude executors.

Create an inventory of your online accounts and their passwords—but don’t include them in your will. Wills should not be changed as often as you change your online account information. Simply explain how you want each account handled if you die, with the terms and conditions for each site included. Save this inventory in an encrypted file, a safe, and with your estate planning attorney. You should also authorize your executor to obtain access to devices and online accounts and reset passwords.

Keep your photos on a computer or local storage device rather than an online site so they’re easier to retrieve. Better yet, save them on two storage devices in separate places, like a home safe and a lawyer’s office.

Some assets can’t be passed on to heirs. An iTunes library can’t be passed as digital music and e-book purchases are nontransferable because they’re licensed to the user. You can only leave these assets if a user agreement permits it.

As Mr. Magliochetti says, “Make the process as easy as possible. As Internet adoption continues, planning will become more important.”

For more information about estate planning, please visit my estate planning website.

Reference: New York Times (November 11, 2015) “Plan Your Digital Legacy, and Update Often”

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Creating a Virtual Asset Instruction Letter

Dt.common.streams.StreamServerThink about the information you store online. There’s the Pinterest page where you keep a collection of family recipes, the Instagram account where you keep your vacation photos, the email account that has contact information for everyone you know and the blog where you keep a memoir you’ve been typing away at for the past five months. There are also your online bank and investment accounts, where at the financial institution’s request to go paperless you now keep records of every transaction they made on your behalf, and a series of other legal/financial documents you or your loved ones might need at a moment’s notice.

Now think about what happens to this information — all of which is stored on a password-protected website that only you can access — when you die. The article “Estate planning in a digital world” from The (Bend OR) Bulletin says that you can avoid personal, financial, and legal headaches associated with losing access to online accounts by creating a Virtual Asset Instruction Letter.

A Virtual Asset Instruction Letter is a document in which you can list your online accounts, the passwords for each one, and instructions explaining what, if anything, should be done with the content each account holds. However, the article says there’s a catch. Even if they have permission people are breaking the law when they use someone else’s password to access their online accounts. There’s a 30-year-old federal statute that’s still on the books that makes it tough in an era of increasing online usage and information. The federal Computer Fraud and Abuse Act of 1986 threatens criminal penalties for people who access online information “without authorization” or in a manner that “exceeds authorized access.” But the legislation doesn’t define what either of these terms means.

The article notes that the same ambiguity exists in many online service providers’ Terms of Service Agreements. You know, the huge documents we just scroll through and check that we’ve read without really reading. These terms can mean someone who accesses someone else’s online accounts risks civil and criminal actions for violating the Computer Fraud and Abuse Act.

Folks in the Pacific Northwest are working on the Uniform Fiduciary Access to Digital Assets Act through the Oregon Legislature during this year’s session. The UFADAA makes it clear the executor of a person’s estate, court-appointed guardian or conservator, or their trustee or another fiduciary has the authority to access the person’s online accounts to gather and distribute digital assets, prevent identity theft, and console loved ones with images and stories posted on social media.

Oregon’s UFADAA wouldn’t create a new law—but would instead update the state’s existing fiduciary codes to cover an individual’s digital assets. Similar bills are being considered by legislatures in Idaho, Nevada, Washington and 20 other states this year.

Talk to a seasoned estate planning attorney to see how digital assets are currently being treated in your state.

For more information about estate planning, please visit my estate planning website.

Reference: The (Bend OR) Bulletin (May 29, 2015) “Estate planning in a digital world”

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Estate Planning for Digital Assets

Digital-asset-managementWhat happens to your online accounts after you die? It’s an important question many people avoid. California Assembly member Ian Calderon recently introduced AB 691 which aims to provide the protections necessary to safeguard our personal information after we die and allow access to only those people designated to have access to our digital property.

For those with online accounts—this includes online bank accounts, social media accounts, and photography accounts—these are part of your digital estate. A recent kcra.com report, titled Have you planned your digital afterlife?, reminds us that a digital estate can cause real headaches for grieving loved ones who may be attempting to access those accounts. The report recommends that people write down their passwords and make sure their trusted relatives will have access.

Google has the option of having trusted contacts access their accounts or to have the data deleted after a specific period of inactivity. Facebook recently started the “legacy contact” option, which lets their users select someone to manage their pages after death. If a user doesn’t do anything, and Facebook discovers that the individual has passed, his or her posts will remain active and “memorialized” according to that user’s settings.

The original article says that it’s important for you to plan ahead and put someone in charge of these digital assets so your family would have the opportunity to take over if something were to happen to you—allowing them to control the information. One more thing:  your digital estate planning should also incorporate your digital devices, like cellphones and laptops, along with the data they contain.

Pictures, music, videos, and documents make up our digital life. Make sure that you’re prepared to pass those on. An experienced estate planning attorney can help guide you through this process.

For more information about estate planning, please visit my estate planning website.

Reference: kcra.com (February 27, 2015) Have you planned your digital afterlife?

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Gaining Access to Digital Assets: Could Your Heirs Be Committing a Crime? / York, PA

MP900178564What happens to digital accounts and assets after a person passes away has become a popular subject. One thing that does not get mentioned very often is that it could be a criminal act for people to access your accounts after you are gone.

It can be very difficult for your family members to gain access to your email accounts and social media accounts after you pass away. It can be even more difficult for them to gain access to your online financial accounts. For this reason, attorneys always stress that you should plan ahead and make sure you have come up with a good way for someone you trust to access any accounts you have.

Recently on PBS News Hour, another potential problem with access to digital accounts was raised in a segment titled Dead and Online: What Happens to Your Digital Estate When You Die? One of the interviewees points out that a family member attempting to gain access to your accounts after you pass away could be in violation of federal privacy laws and computer fraud and abuse laws. It could also be a criminal violation to break the terms of service of the website your family member is trying to gain access to in some circumstances.

As unlikely as it is, a family member trying to gain access to a deceased's accounts may be criminally charged. It is not a good idea to leave it up to chance. You would not want to actually encourage your family to break the law. This is just another reason that you need to plan ahead and come up with a way that someone can access your online accounts after you pass away.

For more information about digital assets, please visit my estate planning website.

Reference: PBS News Hour (July 12, 2014) Dead and Online: What Happens to Your Digital Estate When You Die?

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