Have you ever wondered "What happens to my Facebook® account when I die?"
You likely do not want anyone to continue to post to your Facebook account after you have passed away (creating the illusion that you are still living) but you likely would want a designated person to be able to post a message notifying friends of your death and to effectively suspend the account (or delete it entirely).
How many times have you received birthday reminders for someone you know is actually already dead? Is that probably because the family cannot access the account to suspend it?
Facebook is the largest online social network, with over a billion users. It is estimated that over 500,000 Facebook users will die in 2016 alone. Do you know what happens to a Facebook account? The challenge is in finding a way to honor someone’s post-death wishes while still respecting privacy. Similarly, preserving rights to digital assets for the surviving family, while minimizing probate court involvement and other paperwork-type hassles, needed to be addressed.
Facebook initially didn’t have a policy to adequately answer these questions or to provide for the disposition of the pages and the deceased’s “timeline” posts. However, they saw the need to spell out some rules and they will now allow deletion or “memorialization” of the account. Here is the Facebook request form (retrieved 3/17/16 but the link could change): https://www.facebook.com/help/contact/?id=228813257197480
For years, social media “digital assets” have presented tricky legal questions for the families of those who have died. The law has been slow to keep up with changing technology and social trends. The interaction of probate law with the social-media service companies’ terms-of-use policies can be hard to navigate.
To deal with the privacy part of the problem, a federal law, the Electronic Communications Privacy Act (18 U.S.C. § 2702(b)) was enacted but it was not sufficient alone.
On March 8, 2016, Tennessee enacted the Uniform Fiduciary Access to Digital Assets Act, which will become effective on July 1, 2016. This new law gives us the tools we need to access to Facebook and any other social media or electronic communications.
You will want to make sure your family knows what you want done with your Facebook account upon your passing. Note that even if you give legal authority for access, some service agreements or laws may restrict access - but Tennessee’s new statute is intended to open up access. I have noted that the trend in the law supports “inheriting” these digital assets, so most companies are likely to amend their policies to conform to the action of states like Tennessee.
As of today, 4 states have enacted this statute and it is expected that over half of the United States will have a digital asset statute within the next year. Currently, Tennessee, Florida, Wyoming, and Oregon are the 4 states are up-to-date on this legal issue.
How you set up access to your Facebook account may depend on your state, but in general you just take two steps. First, you would update your durable power of attorney (and amend your trust if you have one) to specifically grant the level of access you desire during your lifetime, including listing any desired limitations. For example, if you are too sick to use Facebook personally you can authorize someone to log on to read messages to you or to even post on your behalf (but you could limit their ability to delete your account while you are living). Second, you should specify in your will that your Executor has the power to post a death notice and suspend/memorialize your social media and email accounts, after you have passed away. Third, keep an eye out for changes Facebook might make as they seek to empower you as a user to directly create access settings in the future.
In addition to Facebook, you will clearly also want to address other account “credentials”, such as Twitter, iCloud, AOL, iTunes, Kindle, PayPal, online banking, and online shopping logins. You can specifically allow your heirs access to your digital assets through a will or trust. By designating a “digital trustee” in advance, you can allow one person to have access to your accounts, even during your lifetime if you become incapacitated and who continues to have authority to memorialize or shut down your accounts after you are gone.
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