For previous generations, disposing of your property at death meant dealing with physical assets and intangible wealth such as cash or stocks. Today we also need to think about digital assets as part of our estate planning. Just think about how much of your life is kept online, from your bank account passwords to family photos on your Instagram page. Now consider what happens to all of that data if you die unexpectedly.
Protecting Your Privacy While Giving You More Control
A recent German case involving a deceased 15-year-old girl’s Facebook page made international headlines. The victim’s parents believed that she was a victim of suicide and wanted to access her social media posts to look for supporting evidence. In May, an appeals court said granting such access would violate the decedent’s “right to privacy,” which outweighed the parents’ “right to inheritance” under German law. As Reuters noted, “Privacy remains a sensitive issue in Germany due to extensive surveillance by Communist East Germany’s Stasi secret police and by the Nazi era Gestapo.”
Privacy is no less of a concern in the United States. That is why a number of states, including California, have adopted new laws designed to give individuals greater control over who can access their online and social media accounts after death. On January 1 of this year, California’s “Revised Uniform Fiduciary Access to Digital Assets Act” took effect. The Act allows a California resident to “allow or prohibit” access to part or all of their social media accounts by authorizing a fiduciary through a provision in a “will, trust, power of attorney,” or similar document. If the service provider offers an online tool to manage such access, a person can use that instead, and any direction they give will override a contrary provision in their estate planning documents.
The service provider is not required to make a partial disclosure of a deceased user’s account if doing so “would impose an undue burden” on the provider. Nor is a provider required to disclose any “part of a digital asset deleted by a user.” In other words, even if you have the authority to access a deceased relative’s account, that does not mean Facebook has to let you see any posts removed by the user just before death, even if the company still has a backup copy.
The Act also contains several protections to prevent the misuse of a deceased user’s data. Anyone who is authorized to manage digital assets still owes the deceased the legal duties of care, loyalty, and confidentiality. Among other things, this means that a fiduciary cannot “impersonate the user” or violate their copyright in the content of anything they posted to their accounts. While service providers must grant access to a deceased user’s data where authorized by the Act, they do not have to “share passwords or decrypt protected devices.”
Need Help With Your Digital Estate Planning?
The laws governing estate planning and digital assets are still developing. You probably have many questions about how California’s new rules may apply to your multitude of online accounts. An experienced San Diego estate planning attorney can help. Contact the Law Office of Scott C. Soady to schedule a consultation today.