What happens to your Facebook page, your Twitter account, your online banking and brokerage accounts and your emails when you die? Who has access to these “digital assets” and who can use and control them or close them down? This issue has been the subject of confusion and debate between social network and other online service providers, who don’t want to be entangled by millions of different directions from their subscribers, and state legislatures that want to provide clarity in this area and control of these assets to their citizens.
New York, California, Florida, Connecticut, Maryland and a number of other states have enacted what is called the Revised Uniform Fiduciary Access to Digital Assets Act (the “Act”). Similar legislation is pending in Pennsylvania, New Jersey, Massachusetts and a number of other states. Delaware passed the Act prior to its being a “revised” act. The Act allows a “user” (the customer) to use an “online tool” (which is separate from the “Terms-of-Service Agreement” (“TOS”)) to designate another person to gain access to digital assets either during the user’s lifetime or at the user’s death. If the user has not made such a designation or if the service provider does not have an online tool, the user can by a will, trust agreement or power of attorney designate someone to gain access to digital assets. If there is no specific direction by the online tool or an estate planning document, then the TOS controls.
If you live in a state which has enacted the Act, what should you do? In consultation with your estates counsel, you should consider the following steps:
- For each service provider with which you have an account, look to see if there is an online tool and use it to designate another person to have access to your digital assets during your life and at your death.
- Include in your will, trust agreement (if any) and power of attorney specific authorization for your executor, personal representative, trustee and agent to have full access to online accounts and social media.
So yes, indeed, your Facebook page lives on after you do … but only here on Earth.