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PBS Program on Lack of Clarity on Digital Asset Rules

The need to plan for the transfer of digital assets after a death is the “topic du jour” in many recent estate planning discussions. The issue remains timely because while more and more people are understanding the important role that online assets and accounts have on their lives, the law in many areas (including New York) has yet to fully catch up. Confusion, uncertainty, and disagreement reign, making it an important topic to be shared.

For example, PBS Newshour recently aired a segment on the minimal clarity in the digital estate process. A full transcript and video of the exchange can be viewed here. The segment includes a conversation between two involved in the issues–a law professor and legal author–who discuss both the legal as well as ethical issues that are tied up with transferring access to online accounts and property that exists solely in digital form.

The program mentioned how unlike some estate planning issues (dynasty trusts, estate taxes, etc.), this is not an issue that only affects a slice of the population. It affects virtually everyone. Consider just one social media site: Facebook. About one billion people worldwide currently use the site. Because of its size, about one user dies every three minutes. What happens to their profile, uploaded photographs, messages, history of postings, and other details? There is no easy answer. Courts, legislatures, social media operators, and community members have been grappling with the legal and ethical implications for the past few years.

The PBS program included a discussion with one father’s about a sad case that highlights the real-world ramifications of the lack of legal clarity. The father explained how his 15-year old son committed suicide in 2011. The family was completely blindsided by the tragedy, without any idea what might be the underlying cause. In the hopes of getting insight into what might have spurred the suicide (and to receive even a fraction of closure), the family sought access to the young man’s Facebook account. Unfortunately, Facebook officials did not allow the family access to most of the account, citing privacy issues and pointing to the agreement the minor accepted when creating the account.

This is not to say that the situation pits the family against the big-unfair social media giant. There are very good reasons why the social media company has a strict terms for service agreement that limits third parties from gaining access to personal profiles. More and more private, embarrassing, and otherwise intimate information is making its way onto online profiles, and most users have the expectation that the assets will remain private. It is not necessarily as allowing just anyone to control that space after a passing.

Until the law catches up, it is critical for private individuals to include information about handling these affairs in their estate planning documents.

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