What Happens to Your Social Media Assets After You Die?
We’re all lawyers here, so we already know that the answer is “It depends.” It depends on what actions you take, if any, before you die. The actions you should take will depend on the social media asset. Many social media accounts are primarily just communication tools. Some also are repositories of data of sentimental value (e.g. timelines, correspondence, photos and videos). Finally, some social media accounts actually have monetary value and could continue to generate revenue after death including paid advertisements and sponsored posts for products. In planning your digital asset estate there are three alternatives: bad, better and best, which we will discuss here.
1. Bad: Do Nothing
We are estate planners; failing to prepare is always bad in our world. It might turn out okay if the default is acceptable. In the context of social media, the default is the Terms of Service for each platform. You know you never read it; you just checked the box saying you agreed to the Terms of Service so you could get on with setting up your account. Additionally, Terms of Service are changed all the time, usually with a simple email notification. If you did not read the initial Terms of Service, you sure aren’t reading the updates.
The platforms’ Terms of Service are usually designed to make things easy for, and to protect, the social media host (Facebook, Google, etc.). Often survivors are given some choices: to close the account of a deceased user, to submit a request for funds from a deceased user’s account, or to obtain data from a deceased user’s account. In the case of YouTube, for instance, the choice seems somewhat illusory. YouTube indicates that in the end they will decide whether to honor the survivor’s request “after a careful review.”
Relying on a platform’s corporate counsel to plan the distribution of your virtual assets, without understanding the terms, is not ideal.
2. (Slightly) Better: Online Tools
Many social media hosts have “online tools” that are standardized agreements between the service provider and account owner for handling the account after death. Google’s is called Inactive Account Manager; Facebook’s is called Legacy Connect. What’s important to be aware of here is:
These “online tools” are written by the platforms, again, for its convenience. Read them carefully.
Options are limited usually to a) memorializing the account (basically turning it into a frozen-in-time version of what it was during life), b) allowing a survivor to download data from the account, or c) deleting the account.
These “online tools” take precedence. It doesn’t matter what your will or trust says, if you filled out an “online tool” that is what will control the fate of the account.
3. Best: Estate Planning
We are estate planners; at the risk of sounding like a broken record, you need a trust. The best way to control your assets from the grave is always a trust, and digital assets are no exception.
With a trust you can decide who will manage your social media accounts and who will benefit from those accounts after your death. You can specify exactly what you want to happen to each account (e.g. memorialize Facebook, Instagram and Pinterest, shut down LinkedIn and carry on with YouTube). This last option is particularly important for social media accounts that have been monetized and could continue to generate revenue after death.
Estate Planning Tips
The relevant California law governing digital assets, including social media, is the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which took effect in California (California Bill AB-691) on January 1, 2017 (Cal. Prob. Code §§ 870 et seq.). Under RUFADAA you can give an executor, trustee, or agent under a power of attorney authority over your social media accounts upon death or incapacity. You can grant full access to the accounts including the ability to modify or delete data, or allow only limited access for particular purposes, such as downloading photos and music.
If you’re going to go the estate planning route, and we hope you do, here are some important considerations:
- Designate a “Digital Assets Trustee” if your standard trustee doesn’t have the knowledge to handle your digital assets.
- Be sure to grant any consent to access and authority over digital assets in all relevant documents, your trust, will and durable power of attorney, in order to ensure access in the event of death or incapacity.
- Define “digital assets” both specifically and broadly in your documents, listing your specific assets and platforms but also including language that will cover future, as yet unknown (and unimagined) assets.
- Include provisions in your documents granting authority over and consent to access your digital devices, as well, as some digital assets may be held in a digital device that would be otherwise inaccessible.
- Specify what you want to happen to each of your digital assets and devices separately. On your death you may want your LinkedIn shut down, your Facebook turned into a memorial, and your monetized YouTube channel to continue making money for your heirs.
- It is very important that your successor has access to your passwords. The RUFADAA does not require social media platforms to reveal passwords. You can rely on the old-school, super secure, handwritten list of passwords that you keep right next to your computer. A better plan would be to use password managing software to store all of your passwords.
- Because minors cannot, by law, write a will or a trust, the only way to access a child’s content online is through a probate or guardianship proceeding.
If your digital assets may have value after your death, it is important to make a plan. It may be time consuming and different accounts may need to be handled differently, but clear instructions will make things easier for those who remain. Take a deep dive into your social media accounts and make sure your plan is laid out clearly.