Podcast: Accessing Your Family Member’s Facebook Account after They Die

Posted October 18, 2012 in Estate Planning Social Networks by

 

What happens when your mom dies and the family wants to get access to her Facebook account?

In today’s Lawyers.com broadcast, host Matt Plessner interviews Lawyers.com Editor in Chief Larry Bodine about gaining access to a family member’s Facebook, Twitter or Flickr account after the person has passed on. Following is a transcript of the podcast.


Matt Plessner:  Welcome to Lawyers.com Radio; your legal solutions start right here. We’ll help you understand your legal issue, find a lawyer in your area and suggest legal forms for legal self help. Today’s show has been brought to you by the Traverse Legal Office of Traverse City, Michigan. Today we’re speaking with Larry Bodine, attorney at law. Larry, nice of you to join us.

Larry Bodine:  Pleasure to be here, Matt.

Matt:  Today we’re going to be discussing a controversial topic when dealing with Facebook. If someone dies, obviously, they’re Facebook account lives on. It’s still active. Can you give us an overview of what exactly does happen to our Facebook accounts when we die?

Larry:  That’s a really good question. Mark Zuckerberg just announced this week that there are now one billion Facebook accounts. There are 200 million LinkedIn accounts, and there are 100 million Twitter accounts. So people have created a lot of information and made a lot of connections in their social media accounts. Families are typically very surprised when they contact one of these social media and ask for access to the account of somebody in their family who’s died. The response will be, “No, we’re not sharing anything with you, and now that we know that the account holder has died, we’re going to close the account and completely shut off access to the family.”

Matt:  Say a loved one or even just someone you know, Larry, passes on, and this is exactly what we’re dealing with here, are you still allowed to access this account at all if you know the password?

Larry:  Yes, and therein comes the planning step that I recommend. An asset that most people think of would be like a house or money in a bank account. Your followers on Twitter and your pictures on Flickr are what we would refer to as digital assets and you need to find a digital estate planning attorney.

The attorney will be able to draft a document that will give the executor authorization to access the account, because typically the social media will not grant any access whatsoever unless they’re confronted with an executor who has specific authority to access an account, or a specific state law that gives them access.

For example, in Oklahoma, Indiana, Rhode Island, Idaho and Connecticut there are state laws that give the executor authority, but there is no national law that gives executors this power. So you need a digital estate planning attorney to make sure that that is included in the estate planning documents.

Matt:  So you’re saying, Larry, that you need an attorney to get into someone else’s account. You can’t just willy-nilly go into it of your own accord.

Larry:  That’s right. I mean you’ll need an attorney either before the other person dies or afterwards and the smart place to hire an attorney is before. The attorney is going to tell you to create a spreadsheet of all your logins and all your ID’s and then tell you to make sure that your family knows where the spreadsheet is, such as in a safety deposit box.

Of course, it’s important for you if it’s your account that you keep this up to date, and what the attorney will draft is what is called a virtual asset instruction letter. That’s basically where you spell out what you want to happen with your social media accounts. Some people don’t want their families getting into that at all and the instructions are going to say “delete everything.” Other people are going to say, “No, I’d like everything preserved. I’d like all people from my email addresses and friends on Facebook to get a message, a final message and I want everything to be preserved.”

So the smart people are going to talk to a lawyer and get all these documents in place ahead of time. If you wait until after the other person has died, you’re going to hit a stone wall from all of these social media. They’re all going to say, “The person who died owns the account and now that you’ve told us they’ve died, we’re going to shut down the account and nobody gets any access unless we see a court order.” Now you’re going to spend a lot of money hiring an attorney to get a court order.

Matt:  Of course you talked about how there’s no national law with this, but instead it’s all state law. What are some of the main differences from state to state on this issue?

Larry:  Oklahoma, for instance, probably has the best statute on it, and it specifically empowers executors of estates, that is the estates of people that have died, to contact the social media and, as part of their duties in wrapping up the estate, to get the information from Facebook or Twitter or Flickr. There are a lot of places where people put up information. People write whole articles and put them up on social media. Professional photographers have vast portfolios on Flickr. And if you happen to be in Oklahoma or one of the states I mentioned, I think you’re in better shape.

But the laws in other states are just completely silent. In other words, there’s no statute that you or your family can rely on if you want to get into the account of, say, your mother who may have passed on and had a bunch of social media accounts or it happens with young people, too.

There was a tragic case a few years ago where a Connecticut college student died in a motorcycle accident and his mother wanted to find out a little bit more about his life and people he knew and his interests, and Facebook would not give her access. She had to go to court, sue Facebook and get an order giving her access.

Matt:  Finally, Larry, do these laws apply to just social media such as Facebook, or can they also be applied to other Internet applications such as, say, email, websites or even blogs?

Larry:  Yes, you make a good point. A digital asset is not just a social media account. It can be your email account, or all your contacts on Outlook. It can be a blog. I’ve written a blog since 2004 and I’ve had over one million people come and visit and read the articles. After I pass on someone might decide it would make an interesting book. But if they don’t have the password and user name, it’s going to be very difficult.

So the trick in all this is before you contact these social media or any company or online service that has your assets, log in as the other person, which presumes that you were smart enough to get the user name and password in advance, and then you can download all the information or copy it. You don’t want to tell a social medium first that, “Oh, the person has died and now we’d like access,” because they’re just going to say, “Fine. We’re just going to shut everything down and lock you out.”

Matt:  Well, thank you very much for your time, Larry, and hope that you can join us again soon. This has been Matt Plessner for Lawyers.com Radio and today’s show has been brought to you by the Traverse Legal Office of Traverse City, Michigan.


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