Estate planning has not always kept up with the pace of change as our lives have expanded into the digital sphere. Whether you are an estate planning attorney or just get asked about random legal topics by your Uncle Eddie, you should know how to plan for sunsetting a person’s social media life after their death. Have you advised your clients about what will happen to their Twitter or Instagram accounts after they die? Have they designated deactivation on Facebook, or will their friends and family continue to get ghost updates after your client’s death?
Prior to death
What you can do for you: One thing you can do is include a provision in your will to give your personal representative “lawful consent” to any social media provider to permit it to disclose the contents of any communication and record under the Stored Communications Act (currently codified as 18 U.S.C. §§ 2701, et seq.), the Computer Fraud and Abuse Act (currently codified as 18 U.S.C. § 1030), and the Revised Uniform Fiduciary Access to Digital Assets Act (currently codified as Indiana Code § 32-39-1, et. seq.).
Some social media platforms also permit you to designate what happens to your account after your death (search your account settings).
What you can do for others: For estate planning attorneys, make certain you include questions about social media accounts in your estate planning questionnaire and include the authority to access and deactivate digital assets in your estate planning documents.
If you are a personal representative — or advising one — and the decedent did not specifically authorize you to access their accounts after death, there are avenues to either remove the decedent’s accounts or put them in a memorialized state.
Each social media platform has a different method for closing, deleting or memorializing its accounts. Most require proof that the account holder is dead and that the person requesting action has authority to act.
What you can do for you: As the owner of your own Facebook page (personal or professional), you may choose to designate a legacy contact who can accept friend requests, pin a tribute, and change the account’s profile picture and cover photo after your passing. To select your legacy contact, go to “Account Settings,” then select “Memorialization settings” for specific instructions. The legacy contact will be informed of your choice and, if your account is memorialized, will be notified.
You can also have your Facebook account entirely deleted rather than memorialized using the same “Memorialization settings.” If you choose this option, Facebook will permanently delete all your Facebook profiles, messages, photos, posts, comments, reactions and information when they receive confirmation of your death.
What you can do for others: Facebook will memorialize a decedent’s account if the personal representative informs Facebook of the death and provides a death certificate or another document showing they have authority to act. Facebook will not share login information, so after providing the information to Facebook, no one can log in to the account. The decedent’s profile will include a “Remembering” badge and the content will remain visible, but the profile won’t appear in public places or pop up as a suggested friend.
What you can do for others: Instagram offers a memorialization option, which will freeze the account, with all photos, videos and comments visible to the audience they were originally shared with. Privacy settings cannot be changed after an account is memorialized. The word “Remembering” will be shown next to the person’s name on their profile, and the account will no longer appear in Instagram’s Explore section.
Instagram will delete a decedent’s account only if a “verified immediate family member” or personal representative submits the decedent’s birth certificate, death certificate, and the decedent’s will or letters testamentary for the estate.
What you can do for others: LinkedIn requires a personal representative to submit the decedent’s name, the URL of their LinkedIn profile, their relationship to the decedent, the decedent’s email address associated with their LinkedIn profile, the date of their passing, a link to their obituary and any other information that may authenticate the death.
If the decedent gave the personal representative authority to do so, he can close or memorialize a LinkedIn account by submitting a copy of the death certificate and a legal document showing that he has the authority to act on the decedent’s estate (e.g., letters of administration or letters testamentary). Closed accounts are permanently removed from LinkedIn, while memorialized accounts are so marked. No further login access will be granted to the account.
What you can do for others: TikTok does not offer a memorial option for a deceased user’s account, but a personal representative can request that the decedent’s account be deleted by contacting TikTok and providing documentation. Once an account is deleted, it cannot be reactivated and none of its content or information may be accessed.
What you can do for others: Twitter requires the decedent’s personal representative or a verified immediate family member to submit an account removal request with the name and username of the account holder. After submitting the request, Twitter will contact the requestor for more information, including a copy of their ID and a copy of the decedent’s death certificate. No access will be provided to the decedent’s account regardless of a person’s relationship to the decedent.
It pays to plan ahead: Advise Uncle Eddie how to set his preferences on his Facebook page and your clients on how to authorize their personal representative to terminate or memorialize their digital lives. And the advice starts at home: Make sure you do the same for your own social media accounts.•
Melissa McCarty advises clients on estate planning and estate administration at Kroger Gardis & Regas LLP. Opinions expressed are those of the author.