Conventional estate plans cover all of the basics: the house, the cars and any other assets you may have. Even when loved ones pass away without a will or any formal estate planning in place, there are laws that determine who inherits what. But when it comes to social media and other online accounts, the laws are murky at best and surprisingly more restrictive.
Major tech companies like Facebook and Google have said that laws passed before digital storage and social media were common prohibits them from releasing photos, records or account information unless granted by the owner, even if said owner is no longer living.
Without permission, loved ones are forced to either go through the costly process of litigating the matter, or resort to cracking the password of each account.
The Electronic Communications Privacy Act of 1986
The law at the heart of all this is the federal Electronic Communications Privacy Act, which was passed in 1986. At the time, lawmakers could not have possibly predicted the rise of social media and cloud computing.
At the moment, this law is preventing many loved ones from gaining access to their deceased family member’s online accounts, which may hold family photos or even financial records. But states are beginning to take measures to address this issue.
A total of 19 states have passed laws that help clarify which information internet companies can and can’t release after a person dies.
Under new laws, internet companies will provide only basic information to heirs, such as the deceased’s contact list. The contents of emails and any photos or documents stored on cloud services would remain inaccessible unless the owner of the account specifies otherwise.
States have tried and failed to pass legislation that would give estate administrators access to all of the deceased’s accounts if no instructions were left on how to manage his or her digital assets. Delaware was the only state to pass such legislation.
Still, many argue that the law addresses the needs of surviving family members without jeopardizing the privacy of account holders.
Should Social Media Accounts Be a Part of Your Estate Plan?
Facebook and Gmail both allow users to designate a legacy contact or account trustee, and these agreements supersede state laws.
However, it is still important to ensure that your digital assets are included in your estate plan. Many people do not realize that the contents of their online accounts are considered property.
The more complicated your “digital life” is, the greater the need to plan for what happens to your online accounts and information after you pass away.
Many people today have multiple devices and accounts, including tablets, smartphones, desktop PCs, online bank accounts and social media accounts. Others have online businesses, blogs and other types of digital assets. What happens to all of these things when the user dies? If no instructions are left behind, the answer may not be so clear.
Incorporating Digital Assets into Your Estate Plan
Taking steps to ensure that your loved ones have easy access to your digital assets can help prevent costly litigation battles and allow your family to enjoy those online memories you preserved.
When incorporating digital assets into your estate plan, the first and most important thing is to take an inventory of all your:
- Online accounts
- Social media accounts
- Websites or blogs
- Work information
Having an inventory of all your digital assets will make it much easier to determine who will gain access and control after your death.
Next, you want to ensure that you choose the appropriate person (or persons) to manage your digital assets upon your death. The person you place in charge of your financial affairs may not be the right person to take care of your digital estate.
Take a moment to consider which person in your life would be best equipped to sit down at your computer and figure out where and how to locate all of your important information and files. It is equally important to ensure that you are working with professionals who have expertise with digital estates.
Two final important things: allow for access and do provide clear instructions.
While this may go against conventional wisdom, writing down your passwords and PIN numbers will allow surviving family members to gain access to your accounts quickly and easily after your death. Just be sure to keep this information in a safe place.
Finally, do be sure to leave instructions on what to do with your digital assets after your death. Perhaps you would like your Facebook account to be closed, or maybe you would like to appoint someone you know and trust to take over your blog.
While laws are changing, digital assets should still be a part of your estate plan. Just as with physical assets, incorporating these assets into your estate will ensure that your wishes are carried out after your death.
The Micklin Law Group, LLC is a New Jersey law firm specializing in family law and estates. Attorney Brad Micklin was recently named to The National Advocates list of Top 100 attorneys from each state. Brad has a special expertise in working with high asset divorce. You can read more on this topic by visiting our divorce blog. To set up a consultation, call 973-562-0100.