When a loved one dies, there are laws governing the distribution of property. If that person had a Will or Living Trust, the legal document identifies the way the estate will be distributed. If the deceased did not have a Will or Trust, the estate goes through Probate, which follows its own predefined set of rules.
But the laws governing digital media are not so well defined
The rules get murkier and more restrictive when it comes to our electronic files. Just what happens to all of the family pictures you’ve posted to Instagram and Facebook, the emails you’ve sent to friends or relatives and the financial records you’ve stored in the cloud on some remote server farm?
California’s AB 691 governs the process of managing online accounts after owner’s death
California’s Probate Code was amended by AB 691, signed into law by Governor Brown and took effect in January 2017. AB 691 governs the process for managing online accounts and other digital assets after their owner’s death. According to AB 691, there are three approaches for dealing with a deceased person’s digital assets in descending order of priority.
Instructions provided in the online tool itself:A user may designate a representative on the application to make specific or discretionary changes to the digital contents. For example, Facebook can allow you to specify within your account which person should have the right to make changes to your profile upon your death, and you can leave directions on how that representative should carry out that responsibility. This designation overrides any contrary direction that may have been left in a Will or other legal document.
Will, Power of Attorney or other legal document:If the user has left no specific instructions within the online tool itself, that person may direct a representative to handle their digital assets through a Will, Power of Attorney, Living Trust or other record.
Terms of service agreement:If there is no instruction left by the user for an online tool, and there is no Will or other legal document specifying how digital assets should be handled, the online tool’s service agreement will control how the account should be handled upon a user’s death.
Protect your digital legacy rather than leaving it up to online accounts
Today’s online accounts have replaced the traditional photo albums of the past, and a digital legacy can last indefinitely. It’s here where we document our lives with pictures and accounts of our activities, friends and families through the years. It’s important to identify how you want these accounts—and your memories–handled after your death. If not identified in the application itself or in your Will or Living Trust, their future is regulated by the service agreement to which you agreed when you created your account–the same one you likely did not bother to read.
Update your Living Trust to include your digital assets