Q. I am a frequent user of Facebook and Twitter, and I sometimes wonder what would happen to my accounts upon my death. Would my family be able to access my posts?
A. Under a new California law that went into effect January 1, 2017, the answer is “yes”, provided that you take proactive steps during your lifetime to authorize access after your death. The new law is called the Revised Uniform Fiduciary Access to Digital Assets Act (“Act”) or AB 691. Previously, California law was silent on the right of family members to access such records after the owner’s death.
Under the new law, there are essentially four ways in which you may give a person you trust (your “fiduciary”) access to your social media accounts after your demise. The “Act” calls these “digital assets”.
1) Use On Line Tool: You may give consent in the “Online Tool” set up by the custodian, such as Facebook or Twitter, in response to the new law. The consent you provide in this tool overrides anything to the contrary in the custodian’s “terms of service”, or any contrary intention in your will or other legal document;
2) Grant Authority In A Legal Document: Under the new law, you may grant access in your Last Will, Power of Attorney, Trust, or other legal document. However, this authorization must specifically grant the right to access your digital assets; a general grant of authority to deal with your estate may not be sufficient.
3) Terms of Service Agreement: If you have failed to grant access by using the custodian’s “Online Tool”, nor given specific authority in your Last Will or other legal document, then the custodian’s Terms of Service (“TOS”) would control, and the TOS may or may not grant authority to access records of your digital communications after your death.
4) Court Order: Finally, unless you have specifically objected to the release in the Online Tool or in your Will or other legal document, your executor might apply for a court order, provided that he or she can show that disclosure is reasonably necessary for estate administration.
So, if you would like others to have access to your digital assets after your death, the two best ways to do this are as follows: (a) go to the custodian’s website, locate the “online tool” established pursuant to this legislation and specifically consent to disclosure to your executor, successor trustee, or other designated loved ones after your death; and/or (b) specifically authorize disclosure in your Last Will, Power Of Attorney, Trust or other legal document.
If you have already prepared your estate planning documents, you might consider the creation of a stand-alone Power Of Attorney for Digital Assets. Note: normally, a power of attorney expires upon the death of the maker. However, under this legislation, a consent in a power of attorney to access digital assets would apparently still be valid, for that limited purpose, after the death of the maker.
There are some shortcomings in the new law, namely: (1) it does not authorize access upon the owner’s incapacity, but only after the owner’s death; and (2) it does not appear to authorize access to financial accounts, such as bank or brokerage accounts, but only to social media and email accounts. Still, if you desire to provide access to your social medical digital assets after your demise, you may now do so, provided that you take proactive steps as outlined above.