What does Facebook have to do with my will?

People spend more and more time using electronic equipment such as smart phones, I-pads and computers.  Many of us communicate regularly by text or email, and enjoy using social media such as Facebook. 

In this internet age, most property is digital or has a digital component in the sense that ownership, access or control is established or exercised electronically.  Consider, for example, on-line banking and brokerage accounts.  

Because the law of wills and trusts has not completely caught up with these changes, estate planning for digital property can be a bit tricky.  Take email, for example. What do you think would happen to your email account and all the information it contains if you died today? 

Some service providers claim to hold the legal right, though not necessarily the duty, to delete an entire account upon notification of the owner’s death or after a designated period of inactivity – regardless of anything the owner may have written in a will or trust.  Others assert the contractual right to refuse to deal with any representative of the deceased account owner. 

Lawsuits have had an impact on some service providers. Earlier this year Facebook quietly started offering a “legacy contract” that lets the account owner name a representative who can take control of certain aspects of the account when the owner dies.  The representative can be empowered, for example, to change the decedent’s profile and cover photo, to pin a special post at the top of the decedent’s timeline, and to accept friend requests from the decedent’s family members and friends. 

Some account owners would instead want the account “cleaned up” by a trusted friend or deleted permanently.  Such a plan may be doable with proper planning regardless of the terms of that company’s service contract. 

A handful of states have enacted laws that empower the owners of digital property to override the company’s terms of service contract.  Unfortunately, Hawaii is not one of those states. 

Whether or not you have taken advantage of the Facebook’s “legacy contract” setting, it’s always a good idea to document your wishes and to make sure your usernames and passwords will be readily available to those who may stand ready to carry out your wishes in the event of your mental incapacity or death. 

As always, I am required to make clear that this is not legal advice and that you should not rely on any of this information to determine what is in your own best interest. And while future installments of this column will address the other common questions and situations that I hear about, the circumstances of my clients are never discussed in this column.  


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