While I am no expert in regards to social media, I do have accounts with Facebook, LinkedIn, Twitter, etc. The question is “What happens to these type accounts after I am deceased?” News about these types of situations recently came to light when the Twitter account of Ryan Dunn, of Jackass fame, was hacked and the alleged hackers “Tweeted” two years after his death. As you can imagine, his family was none too pleased.
The answer has been greatly clarified by the North Carolina General Assembly’s passing of the Revised Uniform Fiduciary Access to Digital Assets Act (the “Act”). See N.C. Gen Stat Chapter 37F. Prior to the Act, attorneys were left to contemplate and attempt to address these issues in an individual’s Durable Power of Attorney, Trust Agreements, and Last Will and Testament. Despite these measures, there was no statutory authority governing these matters. The Act specifically allows an individual to designate that his/her fiduciaries, including attorneys-in-fact, personal representatives, and trustees, can access their digital assets, which include Facebook, Twitter, and the like. Furthermore, should an individual be declared incompetent, his or her guardian is now allowed access to digital assets.
However, there are limitations regarding the scope of the Act. Digital assets in general are specifically governed by their “Terms-of-Use” and “Service Agreement” that a user enters when checking the “I agree” button. If the Agreement a user enters into through the service provider provides for provisions inconsistent with the Act, then the Agreement will control. Also, some digital assets provide online tools allowing an individual to dictate who may have access to their digital assets. Similarly, if the individual provides a direction in an online tool inconsistent with estate planning documents, the directions set forth via the service provider will override the designation set forth in a Power of Attorney or Last Will and Testament.
Despite these limited drawbacks, the Revised Uniform Fiduciary Access to Digital Assets Act establishes much needed statutory authority regarding access to digital assets by fiduciaries. As such, it is imperative that an individual incorporate similar provisions into their estate planning documents. Furthermore, individuals should be more cognizant of the user access provisions in “Terms-of-Use” and “Service Agreements” of providers to ensure that online directions are consistent with his or her wishes.
So remember, there is more involved than clicking “I agree” than you may be aware. If in doubt, consult your estate planning attorney.
Published by Christopher D. Foster on October 13, 2016