MANY HAPPY RETURNS

I am admittedly, a social mediaholic. I have my business blog, business Twitter, and personal Twitter, Twitter for my dog, Koji, Pinterest, and Facebook accounts. The personal accounts are exactly that: they are intended for my personal interests, family, and friends. Occasionally, a client will find me on Facebook, and request that I “friend” them. I always do so, but I also always caution them that if they are looking for great legal analysis, commentary on the development (or lack thereof) on the federal estate tax exemption amount, or any other hints regarding estate planning, they will not find it on my Facebook. Once that disclosure is made, a number of clients remain as “friends” but are a rather silent minority for the most part.

Last week, an exception occurred, due to Facebook’s own ability to notify its users of friends’ birthdays. I was notified that (let’s call him Ed) was having a birthday. If you are a FB user, you know that you can just tap the link on the birthday notification and wish the friend a happy birthday. For some reason, I decided not to go birthday link route, having not heard anything from Ed in some time, so I went on to his FB page. I was merrily composing my birthday wishes to Ed, which included a wish for Many Happy Returns, when I glanced at the photo on the page just below my about to be shared comments. There was a picture of a coffin with a United States flag draped over it.

I scrolled down the page and much to my shock and surprise, I learned that Ed has been dead since June! Am I the only one who finds this sort of thing creepy?

I warned of this sort of thing in our last firm newsletter when I commented on digital estate planning. I wrote that if you are engaged in social media, you should make mention of “digital powers” in both your Durable Power of Attorney for Asset Management (DPAM) as well as your Will.

Your DPAM should authorize your agent to contact IP and Social Media providers on your behalf and to be able to obtain passwords, shut down or modify accounts, etc.

Your Will should allow your personal representative, be that your executor, (or if you are appointing someone who is not media savvy, or you just prefer someone with a more personal touch than say your corporate trustee, you can appoint a Special Digital Personal Representative), to manage your social media accounts once you have passed away.

There is a tendency to think that because social media is fun, that the companies providing the content are lackadaisical and will just cooperate when the widow calls to ask to take down the account. Nothing could be further from the truth. Google, Yahoo, Facebook, and Twitter, to mention a few, are huge, sophisticated corporations all possessed of armies of lawyers whose jobs it is to prevent their clients from getting sued. Accordingly, they all have strict regulations on who can gain access to, or give orders regarding, their clients’ accounts.


These are new concepts, so it is important for you to make sure that your estate planning documents are updated to ensure that your digital legacy is left as you want it.


Since there were pictures of Ed’s funeral, one has to imagine that someone had access to his account to post those pictures and perhaps they were a proper and fitting tribute to him for a short period of time. But do we really want to get birthday notifications regarding someone who is dead? And what message would I be sending if I had hit the “Share” button when I wrote, “Many Happy Returns”?