Facebook and other social networking sites are becoming an indispensible part of modern life. As the world shrinks and family members, friends, and business associates find themselves scattered around the country – or the globe – sites like Facebook, LinkedIn, and Twitter are quickly becoming a communication method of choice.
Even attorneys who have yet to jump on the social media bandwagon have growing numbers of clients who are already on board, and it’s no surprise. These social networks allow users to find and communicate quickly with a massive network of friends and associates. They let people build business networks without leaving the office, and share photos, video, and personal updates with family and friends.
But what happens to a client’s Facebook or Twitter account – or their email account, for that matter – when they die? These accounts fall into the category of digital assets, and unless a client has made express plans for these accounts, they can be left in limbo.
Access to a client’s social media accounts is subject to the Terms of Service (TOS) agreement of the sites in question, and many TOS agreements do not allow a decedent’s personal representative to gain access to an account automatically. So if no one but your client knows the relevant usernames and passwords, there’s no way for their survivors to access these accounts for purposes of terminating them – or carrying out whatever wishes the client may have for them.
- Facebook and other social networking accounts
- Blogging accounts
- Messaging (SMS) accounts
- Email accounts
Under the Nebraska bill, the personal representative would have the authority to take control of the decedent’s accounts and either continue or terminate them, unless the decedent’s estate plan provided otherwise.
As things stand now, Facebook has created “memorialized” profiles for its deceased members, changing the privacy settings of accounts when it receives notification that a member has died. Once an account has been memorialized, family members and friends can continue to leave posts, but the member’s contact information is removed and only confirmed friends can see the profile.
That’s not the same thing as removing an account, and not much comfort for those who are left without access to their loved ones’ e-mail accounts, blogs, and other important digital assets.
So, what should you be doing for your clients now, as we wait for the law to catch up with technology? You can help them understand how important their digital assets are, and help them incorporate those assets into their estate plans. In my next blog, I’ll give you some simple tips for how to help your clients start thinking about estate planning for digital assets.
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (800) 846-1555
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