Facebook After Death: What Happens to Your Digital Assets?

From bank accounts to social media, more and more of our personal information is stored and accessed online. But after someone dies, both these digital accounts and the “digital assets” (from e-mails to stored files) contained in the accounts can become difficult for the deceased’s representative to access.

Typically, access to a deceased’s online accounts or assets is governed by each site’s policies. For example, Twitter requires a death certificate and a signed statement from the deceased’s representative before closing an account. Shutterfly will provide access to an account with proof of a death certificate and power of attorney document. Yahoo allows a deceased’s account to be closed by the personal representative but not accessed. Requests to close Instagram accounts can be made entirely online by someone other than the representative. Gmail warns that its 2-step process may take several months and require, among other things, an e-mail from the deceased and a court order.

In an effort to streamline family member’s access to online information, some states have proposed or enacted legislation to allow family members or representatives to access digital assets or accounts. For example, Idaho’s law specifically gives the power to an estate’s personal representative to “take control of, conduct, continue, or terminate any accounts of the decedent” on social networking, microblogging, or e-mail websites. Ohio has not yet enacted such a law.

It is unclear how this patchwork of new law will affect existing probate, criminal, or other statutes. As a result, the Uniform Law Commission is currently drafting model legislation governing Fiduciary Access to Digital Assets to give guidance to the states.

Until this new area of law is settled, both clients and attorneys should include digital asset consideration in the estate planning process. We are now recommending that our clients incorporate language into their estate plans to specifically grant personal representatives the power to access digital assets after death.