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Digital Assets and Estate Planning

Often a client will ask me, “What happens to my social media accounts when I pass?”

Well, good question. Oklahoma passed a law in 2010 which seemed to address this issue. Specifically, the law gives the executor or administrator of an estate the power to “take control of, conduct, continue, or terminate any accounts of a deceased person…” However, the law has an important caveat, this power can only be used “where otherwise authorized.” As Marshall Dyer points out, it seems that the caveat would only allow an administrator or executor to act when authorized by the terms of service. It is not at all clear that many social media sites allow for such control by an administrator or executor.

Another concern about this legislation is that it allows the executor or administrator to take control, continue, or conduct the accounts. It makes sense to continue a Facebook account if there is potential of revenue, or important messages need to be conveyed to followers of the account. But, allowing an administrator or executor to conduct a Facebook account, may not be what the decedent intended.

There is currently no case law to help us interpret this statute or its efficacy. But, a new social media law is making the rounds and being adopted by states. The Fiduciary Access to Digital Assets Act appears to be helpful in allowing administrators and executors administer social media sites.

Until more guidance is offered by the Courts about how to protect online assets, one option is to include language in estate planning documents authorizing executors and trustees to take limited actions regarding online accounts. Although there is no guarantee that social media sites will follow these instructions, it is at least a starting point.