According to the Associated Press, Nebraska and Oregon are next in line to consider a law, like one passed in Oklahoma last year, whereby a person's facebook account becomes a part of their formal estate.
The issue of digital rights as a part of an estate arises out of situations like that of Karen Williams. In 2005, after her 22 year old son was killed in a motorcycle accident, the Oregon mother's fight with facebook began to gain access to her son's page. Though she had found his password, after emailing facebook to tell them what had happened and to ask them to maintain his page, so that she could learn more about him and read what people wrote about him, within two hours they had changed his password, locking her out.
While Williams ultimately got back into her son’s account, it wasn't without having to file suit and endure a two-year legal battle that she finally ended up being granted 10 months of access before her son’s page was removed.
Lawmakers are considering passing laws to make facebook and other social media accounts a part of a person's "digital estate," because then, if the person dies without a will or other legally sufficient document detailing passwords and instructions regarding how these accounts are to be dealt with, relatives will be able to have a legal default access option.
Under Facebook’s current policy, deaths can be reported through the use of an online form. When the site learns of a death, it locks that person’s account in a memorialized state. Certain information is then removed, and privacy is restricted to friends only. The profile and wall are left up so friends and loved ones can make posts in remembrance. Additionally, if a close relative asks that a profile be removed, Facebook will honor that request.
Oklahoma was the first state to address the issue, passing a law that allows friends or relatives to take control of social media accounts if the deceased person lived within the state (which only begs the question regarding relatives not living in the state).
In general, these measures treat Facebook, Twitter and email accounts as digital assets that can be closed or continued by an appointed representative. In other words, they become like any other asset in the estate.
In addition to granting the same rights as the Oklahoma law, Oregon's proposal may also include a sort of instruction letter, that would contain online information and passwords, in the event a person becomes incapacitated, or for after their death.
The idea of a resource document with login information is one I first encountered at a continuing education event on a sort of ethical will. Essentially, it entailed a sort of addendum to a formal will, which contained information about online bank account log in information, email, and social networking sites. The idea of one document containing all of the information necessary to access a person's accounts seems like the best way to ensure that your entire estate is in order. This form of access, however, does not supplant for post-mortem access and control of a person's social media account.
Your Estate Planning Attorney can make further common sense type recommendations, such as with an online access document, based on problems they have run into in the past, or tools that they have found work particularly well. Given the fact that laws typically lag far behind technology, its always a good idea to be proactive in thinking about what future quagmires might present themselves when it comes time to distribute your estate.
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