iWill or iWon’t

Mitchell Silberberg & Knupp LLP

Ever wondered what will happen to your Facebook page when you die? The California Legislature has recently weighed in. Effective as of January 1, 2017, California will have its first law to specifically address the handling of your “digital assets” after your death. The Revised Fiduciary Access to Digital Assets Act will determine who, if anyone, can access your digital assets, such as social media accounts, online gaming accounts and music accounts after your death. Under the new law, the custodian of digital assets – such as Facebook, Gmail or iTunes accounts – must provide a fiduciary access to a deceased individual’s digital assets as the decedent previously directed. The Act sets up a three-tiered approach, which works as follows:

  1. An individual may use an “online tool to direct the custodian to disclose to a designated recipient, or not disclose, some or all of the user’s digital assets.” The online tool will override any instructions in an individual’s will, trust, power of attorney, or other record. Some such tools already exist, such as Google’s “Inactive Account Manager.”
  2. If an individual does not use an online tool to direct the handling of his or her digital assets, instructions contained in a will, trust, power of attorney, or other record may allow or prohibit access to digital assets. Most importantly, the directions contained in an online tool or will, trust, power of attorney, or other record, will override a service provider’s terms of service.
  3. The custodian’s terms of service will govern the disposition of the digital assets if not otherwise directed by an online tool or directed in a will, trust or other document.

This is a significant departure from the prior state of affairs. Previously, each online service provider’s terms of service would dictate the handling of an individual’s account post-death. Yahoo’s terms, for instance, state that “You agree that your Yahoo account is non-transferable and any rights to your Yahoo ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.” Google’s Help Desk, on the other hand, states that “In certain circumstances we may provide content from a deceased user’s account.” This hodge-podge of terms of service agreements has meant that, even for a single decedent, each individual asset could have different governing rules. Further, more restrictive terms (like Yahoo’s) barred grieving family members from accessing their loved ones’ emails after death.

Now, by contrast, an individual may direct each online service provider exactly how to deal with his or her digital assets after death, and an individual’s estate planning documents can also override terms of service. In order to direct the handling of your digital assets after death through the use of a will, trust, power of attorney, or other record, such instrument must be executed on or after January 1, 2017, when the law takes effect. This law is yet another reminder of the importance of updating your estate plan every few years in order to keep up with changing laws.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Mitchell Silberberg & Knupp LLP

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