This column first appeared in the SA Express-News and its MySA.com website on March 3, 2015.
Dear Mr. Premack: A few years ago you wrote about legal control of digital assets, like emails and online stored photos when a person dies. I didn’t think too much about it until I started to use my phone to take lots of photos, and they auto-upload to the cloud. I put lots of photos on Facebook, and was wondering what happens to the Facebook records, posts, photos and videos should I die? – N.R.
Until recently, when one of Facebook’s 1.3 billion active users died, the account was put into “memorial” mode after Facebook was informed of the death. Many people simply shared their log-in credentials with a trusted person (like their spouse, child or executor) expecting that person to log-in and continue (or download) their files upon death. However, sharing log-in credentials is technically a breach of the legal contract you enter into with Facebook when you become a user.
Having your Facebook page frozen in memorial mode was dissatisfying to many of its users. Facebook has thus implemented a new procedure. You may now designate a “legacy contact” if case of your death.
To change your Facebook account, log-in and use the point-down arrow in the upper right hand corner. Go to settings, then security, then legacy contact. You can select among your Facebook friends, and a message can be sent to that friend telling them of their new status as your legacy contact.
If you do not select a legacy contact online, then after your death your Facebook page can only be accessed by the “digital heir” you name in your Will. The concept of granting management rights for your digital information is not something that most attorneys include in Wills; only attorneys who are aware of the problem even know to address it.
When appropriate, it makes sense to authorize your Executor to have access to your digital files, your online files, your computer, your bank log-in, your brokerage long-in, etc.
Microsoft’s terms for its file sharing service OneDrive specifies that you own all the content which you save on their servers. You can share content with anyone you select, without any special procedures. If a person has your log-in credentials, they may access your digital assets.
Google now allows you to select one or more people to access your account, but its approach is different. Using the “inactive account manager” feature, you can designate a time period – 3, 6, 9 or 12 months – and if you fail to access your account in that period then Google either 1) notifies your delegate, who may access your account, or 2) deletes your account if you have so instructed.
For the broadest safety, consider including provisions in your Durable Power of Attorney which grant management rights for your digital information to your agent. If you become disabled, you may have incoming emails, orders placed with Amazon or other online merchants, and bank accounts with statements available only online. Grant your agent specific power to access those digital assets, and give your agent your password list so that access becomes possible.
Be sure that you are working with a qualified estate planning attorney who has kept up with these recent developments. Never create a Will or a Durable Power of Attorney online with services like LegalZoom, unless the service is run by an actual attorney. The big online form services do not provide legal advice (they cannot legally do so as they are not licensed attorneys).
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.Premack.com.
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