Who takes over your social media when you die?

The answer to that question might depend on the specific policies and instructions you have set in place.

If you have designated a digital executor in your will or estate plan, they may take control of your social media accounts and make decisions regarding their management.

Alternatively, some social media platforms have policies in place for what happens to accounts after the user’s death.

For instance, Facebook allows users to specify a legacy contact who will have limited access to the account after the user passes away.

It is always a good idea to clearly communicate your preferences to your loved ones and ensure you have made the necessary arrangements for the management of your social media accounts after your death.

But at the end of the day, are your instructions or preferences really going to be enough with regard to allowing others to manage your digital affairs?

Under the Montana Code Annotated 2021 TITLE 72. ESTATES, TRUSTS, AND FIDUCIARY RELATIONSHIPS — Chapter 31, Part 4, there are legislated procedures for administering your digital assets. It’s called the Uniform Fiduciary Access to Digital Assets Act, and it pretty much spells out what may be involved when dealing with a deceased person’s digital assets.

Not all states have this sort of legislation enacted of course, leaving the administration or reconciliation of digital assets up to the likes of Google or Facebook or Uncle Joe.

As far as the actual legislation is concerned, we can sort of thank the Uniform Law Commission.

The Uniform Law Commission (ULC, also known as the National Conference of Commissioners on Uniform State Laws), established in 1892, provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law.

Back in 2014 a standardized framework for this legislation was written and was pitched to the states for potential adoption. So far, 47 states have enacted the revised 2015 version and one state, Delaware, has enacted the original 2014 version.

California (why am I not surprised), Louisiana, and Oklahoma have yet to even consider either version of the legislation.

“Our email accounts are our filing cabinets these days,” said Suzanne Brown Walsh, a Cummings and Lockwood attorney who chaired the drafting committee on the original bill. But “if you need access to an email account, in most states you wouldn’t get it.”

This kind of legislation has met it’s fair share of opposition in the past of course, with privacy advocates frustrated with the whole process, who say people shouldn’t have to draft a will to keep their mom from reviewing their online dating profile or a spouse from reading every email they ever wrote.

Ginger McCall, associate director of the Electronic Privacy Information Center in Washington, said a judge’s approval should be needed to protect the privacy of both the owners of accounts and the people who communicate with them.

“The digital world is a different world” than offline, McCall said. “No one would keep 10 years of every communication they ever had with dozens or even hundreds of other people under their bed.”

Most people just assume they can decide what happens by sharing certain passwords with a trusted family member, or even making those passwords part of their will. But in addition to potentially exposing passwords when a will becomes public record, anti-hacking laws and most company’s “terms of service” agreements prohibit anyone from accessing an account that isn’t theirs. That means loved ones technically become criminals if they log on to a dead person’s account.

“This is something most people don’t think of until they are faced with it. They have no idea what is about to be lost,” said Karen Williams of Beaverton, Oregon, who sued Facebook for access to her 22-year-old son Loren’s account after he died in a 2005 motorcycle accident.

Over all, the legislation is pretty much designed to prevent the pitfalls of assumed privacy violations and identity theft.

The Uniform Law Commission did a pretty decent job of putting this all together and at the end of the day it helps more people than you might imagine when it comes to navigating the confusing and convoluted terms of service agreements that organizations like Twitter, Google, and Facebook have.

More about the Act:

The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) governs access to a person’s online accounts when the account owner dies or loses the ability to manage the account.

A fiduciary is a person appointed to manage the property of another person, subject to strict duties to act in the other person’s best interest.

Common types of fiduciaries include executors of a decedent’s estate, trustees, conservators, and agents under a power of attorney.

This act extends the traditional power of a fiduciary to manage tangible property to include management of digital assets.

The act allows fiduciaries to manage digital property like computer files, web domains, and virtual currency, but restricts a fiduciary’s access to electronic communications such as email, text messages, and social media accounts unless the original user consented to fiduciary access in a will, trust, power of attorney, or other record.

For more information about the RUFADAA please contact ULC Chief Counsel Benjamin Orzeske at (312) 450-6621 or borzeske@uniformlaws.org.

Thanks for the read.

Happy Trails