From the Owens and Millsaps Blog

Social Media Life After Death: Taking Stock of Your Digital Life

iStock_000001738349SmallHave you thought about what will happen to your Facebook account after you die? To your emails? Or to your Snapchats, Instagram photos, websites, domain names, dating profiles, and blog posts? Most people have not. But all of the thoughts, ideas, conversations, documents, photos, and other items stored in your online accounts represent what are referred to as your “digital assets.” Planning now for how you would like them handled can save your loved ones a lot of confusion later on.

Accounting for digital assets in a will involves several key considerations: (1) What are my online accounts? (2) How do I want each of them handled after I die? (3) By whom? (3) What will my friends and family members or the executor of my estate legally be allowed to do? (4) How much access and control do I want them to have? and (5) How can I make sure that happens?

The disposition of digital assets after death is a murky area of law; states that have adopted laws for how to handle them have done so varyingly. Alabama is among the majority of states that do not yet have specific legislation in place, but federal law generally prohibits providers of electronic communication services from divulging the contents of communications stored by the service to unauthorized persons. It also prohibits individuals from accessing such communications without authorization.

To try to smooth the process for users, companies such as Facebook, Twitter, and Instagram have established individual policies for handling the accounts of the deceased that aim to balance existing legal requirements with the needs and wishes of bereaved friends and relatives. Indeed, some companies allow their customers to determine in advance how their account should be handled after death. For example:

  • Facebook allows users to decide in advance whether they would like their personal account deleted when they die or “memorialized.” If an account is memorialized, the word “remembering” is added to the user’s name, and the account holder may determine in advance whether to allow friends to post messages on the memorial site. Users also have the option of establishing a “legacy contact” who will be allowed limited access to the account to: write a final post, perhaps to share funeral arrangements or other information; respond to friend requests; and update the profile picture and cover photo. Users may also grant permission for the legacy contact to download a copy of items shared on the account. However, the contact may not access the account, change any prior posts, unfriend anyone, or read personal messages.
  • Instagram will deactivate a deceased user’s account on request by an immediate family member or estate representative with certain documentation. Alternatively, the site will memorialize an Instagram account on request, which will prevent anyone from logging into or changing the account. It will also delete the account from all of Instagram’s public spaces, though it will allow others to send photos or videos to the deceased person, and prior posts by the deceased will remain visible to their selected audience.
  • Twitter provides a process by which a verified family member or representative of the estate can deactivate the account of a deceased person. The company also will remove photos and videos of the deceased if the images are directly related to the person’s death.

With so much of our lives being lived online, it is important to take stock of your digital assets as part of the estate you will leave behind. Although it is useful to familiarize yourself with the policies of the online service providers you use and to adjust your account settings accordingly, it is also important to keep in mind that such policies are limited.

You may determine that you want certain friends or family members to have greater access to your accounts than service providers will allow. But how can they do so? Having a current list of accounts, along with appropriate instructions and information detailing who can access which accounts, how those accounts may be accessed, and how you would like them handled, will help. An attorney can help you properly address such questions as part of the will drafting and estate planning process to ensure loved ones are able to settle your online affairs according to your wishes.