By the end of 2015, more than half the people of all ages in Canada will use social networks such as Facebook and Twitter at least once per month, according to estimates prepared by the research firm eMarketer. Canadians have clearly bought into the merits of communication via social media.
As with so many things in life, this new reality has not escaped the law of unintended consequences. The demise of home-mail delivery due to the rise of email is one example. The impact on estate planning of social media is another.
What would happen to your email and social media accounts and other digital assets, such as photos, online bank accounts and online business, if you became incapacitated or died? Would your attorney for property and financial decisions or the executor of your will be able to access them? Could she use the accounts to inform your friends about your status? Would she be able to close your accounts at a time she deems appropriate?
"Many American states have passed legislation which permits executors or other fiduciaries access to digital assets," says Richard Weiland, a trusts and estates lawyer in British Columbia. "However, in Canada there are no specific laws relating to the handling of digital assets by executors or other fiduciaries."
Consequently, the terms of service or user agreement for an online account generally governs how the account of a deceased or incapacitated person is handled.
Service providers are understandably concerned about account security and privacy, and compliance with applicable laws such as the Personal Information Protection and Electronic Documents Act. So they draft their agreements, which have the force of legal contracts, accordingly. The terms of these agreements can complicate the jobs of attorneys and executors.
For example, a request to close or obtain data from a deceased person's Google account (Gmail, Google+ or other services) must include a copy of the deceased's death certificate and acceptable identification of the person making the request, and there are no guarantees that the request will be filled. Google will never release the account password. "In all of these cases, our primary responsibility is to keep our users' information secure, safe and private."
Facebook's approach to handling such requests is similar.
Twitter will deactivate a deceased user's account, but is "unable to provide account access to anyone regardless of his or her relationship to the deceased."
According to Weiland, most service providers will close an account when a user has died or become incapacitated, if the request includes proper documentation. However, a court order would usually be required before an online service provider will allow account access.
Even with your account-access information in hand, your attorney or executor may not be able to legally access your online account, because user agreements typically prohibit sharing account information. For instance, Facebook users must agree to these conditions:
- You will not share your password ..., let anyone else access your account...;
- You will not transfer your account ... to anyone without first getting our written permission.
Some estate planning now can help your attorney and executor respect your wishes regarding the disposition of your digital assets. It begins with taking an inventory of these assets.
You will need to decide on the fate of each asset if you become incapacitated or die. This will take some thought, as there are numerous aspects to consider, such as:
- Who, if anyone, should have access to each online account? Your executor might need access to investment records in your email account, or there could be bills sent by email that your attorney will need to pay.
- What should happen to the data you have stored online? Will your family members want copies of photos you have posted online? Perhaps there are business records that your company will need.
- Do you want a social-media account to be memorialized after you die? This is an option that allows friends and family to continue to have access to shared content.
- When should the account be closed?
Your estate planning will include reviewing each online account provider's policies regarding access and closure if a user is incapacitated or dies. A good place to start is Getting Dead Loved Ones #Offline, which has posted the relevant verbatim instructions with handy links for numerous social media sites such as Facebook, Instagram, Twitter and LinkedIn.
You can tell some service providers how your account should be handled if you die or become incapacitated.
A Facebook user can name a legacy contact to take care of a memorialized version of her account after she dies. The contact can do such things as post information about a memorial service, but cannot access the account. Shared content remains visible to those with whom it was shared. A user can instruct Facebook to shut down her account if she dies.
Instagram, which is owned by Facebook, has similar policies.
Google's Inactive Account Manager allows a user to add trusted contacts that should be notified if her account is inactive. Users can opt to allow the contact to share data.
Before you finalize your estate plan for digital assets, a discussion with your attorney and executor can provide useful feedback and will result in a plan they can understand and execute.
Your will and power of attorney should give your executor and attorney the authority to handle your digital assets. Weiland recommends that asset details including account numbers, passwords, answers to challenge questions and desired disposition be set down in a memorandum. This allows these details to be updated on an ongoing basis, without requiring revisions to the will or power of attorney. The memorandum should be stored securely, but be accessible to your attorney or executor in the event of your death or incapacity.
