Questions raised over social media on death: EQT

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As social media proliferates, dealing with a loved one’s digital footprint after their death will become an increasingly complicated issue, says Anna Hacker, wills and estates accredited specialist at Equity Trustees Limited (EQT).

Anna Hacker

“The treatment of physical assets in the estate planning process is well documented, but what about digital ones?” Ms Hacker asks.

“In the brave new world of FaceBook, Twitter, Instagram, Ebay, Paypal, LinkedIn, Kik, and the like, the process of shutting down a loved one’s social media account after death is not clear cut.

“What’s more, ownership of the material in the account, such as stored digital images, does not automatically pass to the estate beneficiaries.

“The issue for many is that they want to access photos that are stored on their deceased family members social media sites. In this digital age, when many of our photos are stored on social media sites, and nowhere else, it can be distressing to be denied access.”

Ms Hacker says social media aspects of estate planning are an emerging problem that will hit critical mass in the future.

“To date, social media hasn’t been a big issue in the estate planning process as the older generation is not as attuned to it. However, it will become a growing issue in the future, complicated by the fact that the legal treatment of digital assets after death is not clear cut.

“Social media assets, and how to account for them, is an issue we are increasingly raising with our clients when we are providing an estate planning service, to ensure they have thought through the implications.

“But the generation that really utilises social media heavily hasn’t been affected en mass yet.”

Ms Hacker says most social media sites do have policies on how a deceased person’s account can be closed by an executor, but the process depends completely on the terms and conditions of that entity.

“Being across what will happen with one social media account, is no guarantee that you are across the treatment that will apply for all of them,” Ms Hacker says.

“With Yahoo media, for example, the account is automatically closed in the event of the account holders death. With Facebook, the account can be converted to a memorial page. There is no uniformity of treatment.”

The issue can be further complicated by the different legal jurisdictions that these sites operate in.

“When you open a bank account with your local branch, you know that bank and you know that branch. But when you open an online account on social media, you could be anywhere.

“Most platforms are based in the US, and would have the relevant US law apply. In some circumstances you may need a court order to access the information, and often people won’t know this until it is too late.”

Ms Hacker says there are steps that can be taken in the estate planning and will drafting process that will assist.

“The best approach is to ensure that you leave your social media details behind. In the same way that you might leave behind details for the code to a safe, you can leave a sealed document, stored with your will, containing all the information relating to your passwords and online accounts.

“Even this approach is problematic however, as online account passwords are often required to be updated regularly.

“Another issue to be considered is that by accessing an account after the account holder’s death, you could be acting illegally.

“The law hasn’t caught up with the implications of the treatment of digital assets on an account holder’s death, to properly deal with it. It is important that people are aware of this when completing their estate plan,” Ms Hacker concludes.

Ms Hacker’s tips for dealing with social media include:

  1. Keep a sealed record of the details of your digital accounts and passwords in a secure place
  2. Don’t only store your digital images on social media sites, and nowhere else
  3. Be aware that if you contact a social media site to inform about a family member’s death, the account may be immediately closed, and all information lost
  4. The laws related to social media are constantly evolving so if this is of relevance to you, make sure you keep updated as to changing rules
  5. Consider what might happen if you lose capacity and your attorney needs to deal with your social media access – this is almost unknown territory.

Equity Trustees Limited (EQT) is a publicly listed company that provides a range of financial services to corporate and private clients. Its businesses include asset management, distribution, responsible entity appointments, private client wealth management, and corporate and personal superannuation.

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 For more information please contact:

Anna Hacker – Phone: 0433 138 004

31 July 2014