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Estate and Elder Law

David Shulman on Estate Planning: Facebook Allows Users to Designate a ‘Legacy Contact’ to Manage Their Account After Death



For those who have been following, the issue of “digital assets” is a fast developing problem in the estate planning world. Putting aside for a moment who has the right to “inherit” your assets, the bigger problem with estate planning attorneys is who has access to certain assets and online accounts when you die.

Take for example, your Facebook account. Think of all of the information in it that your loved ones might want to have if you died. This includes photos, posts, replies, messages, etc. Or maybe there is something that you might want deleted.

Up until now, there were only two options for your account when you died. One, Facebook would delete it entirely, or two, it would create a “memorialized” account, which would lock it in place at the time of your death. Your current friends could post “RIP” type messages, but no new people could be added, your profile photo would be whatever it was at the time of your death, the rights level would be the same at the time of your death, etc.

There has been an ongoing battle between estate planning attorneys and the online providers over this. Last year, the Uniform Law Commission published the Uniform Fiduciary Access to Digital Assets Act. I was fortunate to have been appointed by the American Bar Association to be an advisor to the committee. The online providers were not in favor of the act - and as far as I can tell, they are still not.

While I think the law is still necessary, I also hope that market forces will force the providers to change their minds. If enough people want to allow someone to have access to their accounts after death, then the services will give it to them.

Today, Facebook announced that they are allowing you to designate a “legacy contact,” to manage a your account after it is memorialized.

Reading it over, they do not offer full access. Here is what it is. First, your account has to be memorialized. This adds the word “Remembering” over your name, and – but for the new legacy contact – locks your account. 

The legacy contact will be able to:

  1. write a post at the top of the memorialized timeline – telling people that you died, giving funeral information, etc.
  2. accept new friend requests from friends and family members who were not yet connected to them on Facebook
  3. update the profile picture and cover photo
  4. download all the photos, posts, and profile information you shared on Facebook – this seems to be an optional setting.

The legacy contact will not be able to:

  1. have access to any private or direct messages sent or received by you
  2. change or delete any past posts, photos, or anything else shared on your timeline -so that embarrassing picture of you dancing topless on the bar is there for eternity.
  3. Remove any of your friends – I wonder if they’d make an exception for someone who killed you. Sort of like a slayer statute for Facebook.

So it isn’t perfect, but it’s certainly a step in the right direction.

Visit South Florida Estate Planning Law for more commentary from Florida estate planning attorney David Shulman.

David Shulman is an attorney located in South Florida who focuses his practice on Wills, Trusts and Estates, and Tax Planning. He attended George Washington University Law School and Brandeis University, both of which he graduated with honors. In addition David received his LLM in Estate Planning from the University of Miami Law School. Prior to starting his own practice, David worked for the Internal Revenue Service and a large South Florida law firm.

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