In response to many of their account holder’s families, Facebook announced it has a new feature that allows users to designate what Facebook calls a Legacy Contact for their Facebook  accounts. What this means is you can now directly let Facebook know who will be in control of your account after you die. It is a way, though, to turn your Timeline into a memorial.  You can also let Facebook know if you want your account to be permanently deleted after your death just by adjusting your account settings.

There are clear parameters in place so that a Legacy Contact isn’t allowed to take over a deceased user’s Facebook account and continue to use it as if the person were still alive. A Legacy Contact will have access to the Facebook Account but will be only allowed to do the following with the deceased user’s account:

  • • Write a post to display at the top of the memorialized Timeline
  • • Respond to new friend requests for the memorialized profile
  • • Update the profile picture and cover photo
  • • Download an archive of the photos, posts and profile information shared on Facebook- only if you elected to do so

Don’t be concerned that the person chosen as your Legacy Contact will be able to log in as you. Facebook has made provisions to prevent that, as well as making sure that they will not be able to read your private messages.

And your Legacy Contact will not have access to your account until after Facebook is notified of your death. A friend or family member can notify Facebook of your death. Proof, such as an obituary or death certificate, can accompany the notification, but is not required.

So how do you designate your Legacy Contact? Facebook users only need to open their Settings, then open their security options, and designate their Legacy Contact. You can opt to send a message to that person, which would be highly recommended. You will also be able to give permission for your Legacy Contact to download an archived version of your Facebook posts, photos and profile information. You can find more information on Facebook’s help site.

You can, and should, also mention your Legacy Contact in your will. Facebook indicates it “may” provide information, presumably the same information and access provided to a designated Legacy Contact, to a person indicated in your will or another legal document granting consent.  The Legacy Contact, however, is only helpful in the event of death and not for other forms of disability or incapacity.

While Facebook has been proactive in the area of providing users with a way to plan for their accounts after death, many other providers have not.  And most people now have a growing number of what we are calling digital assets.  All of these should be included in your estate planning to help manage your online accounts when you no longer can.  Such a plan can, and should, be a part of your will, Living Trust, and financial power of attorney, and information should be conveyed to the individuals who will be in charge of the digital portions of your estate.

For example, people have websites, or data stored on other websites, social media profiles, photographs, music libraries, emails, PDF documents, files, and a variety of web-based businesses, including E-bay storefronts and Paypal accounts.  Also, many people have blogs or websites, along with a spectrum of affiliate accounts with various vendors and advertising contracts.  These are not provided for in a traditional estate plan.  In fact, people need a way to “protect” all of their password-protected information.

In the “olden” days, when someone died, the most effective way for their personal representative (executor) or successor trustee to identify all of their accounts, debts, and financial information, was to take control of their mail.  The mail is forwarded to the executor or to the attorney and within a month or two, three at the most for quarterly statements, all of the important information was discovered.  Now, however, many have gone paperless and all of their statements go to their email, and many of their transactions occur online.  The executor or successor trustee is often locked out of those sites.

To make things worse, companies often have very restrictive terms of service that address access to the information, and legislation such as the Stored Communications Act of 1986 further restricts disclosure by the company.

In 2014, the Uniform Fiduciary Access to Digital Assets Act (UFADAA) was drafted.  This proposed legislation is available for states to enact to deal with managing digital assets in the event of death or disability.  The act would provide access to executors (personal representatives) of estates, agents under powers of attorney, trustees and successor trustees, and court-appointed guardians and conservators.  It will override provisions in terms of service agreements, if those provisions conflict with express instructions of the account holder.  Instructions can be conveyed through a will, trust, and/or power of attorney.  As of mid-2015, the act has been introduced in 26 states, but has been enacted only in Delaware.

For now, some basic estate planning for digital assets include:

  1. Maintain a list of all accounts and passwords.  This list is kept in a safe place – if paper, locked in a safety deposit box or other safe.  Make sure someone else has access to the storage place.  The list can also be digital with a separate password provided to a trusted individual.
  2. Refer to the list in your will or trust (or both).  Do not include the list or any passwords in the will as this can become public.  Although trusts are designed to be private, passwords should not be listed there, either.
  3. Include clauses in your trust granting authorization to the successor trustee to access your accounts and account information.  The same authority should be included in the will for the executor, but a will generally requires court action to give the executor authority.
  4. Update the information as necessary.