Imagine you were named the executor of a famous Facebook content creator (influencer?) who recently passed away. Let’s call him John Doe. How can you go about accessing John’s Facebook account, worth millions?
Let’s assume that John planned for his demise and included the password to his Facebook account in a separate memorandum, attached to his will.
Facebook’s Policy
The first thing you should consider is the contract that John signed with Facebook when he signed up to use their platform. Of course, I am talking about the frightening Terms of Service that nobody reads (we previously blogged on some of these policies). Don’t worry, I read it for you so you don’t have to do it. The relevant provision you need to consider is the following:
- Who can use Facebook
When people stand behind their opinions and actions, our community is safer and more accountable. For this reason, you must:- Use the same name that you use in everyday life.
- Provide accurate information about yourself.
- Create only one account (your own) and use your timeline for personal purposes.
- Not share your password, give access to your Facebook account to others, or transfer your account to anyone else (without our permission).
Well, that’s interesting. According to Facebook’s own rules, nobody is allowed to share their account or provide access to their account to anyone else, at least without Facebook’s permission.
But what does that mean for estate planning? How can you administer John’s estate if a significant portion of his estate is locked in a platform that doesn’t allow account sharing? Based on Facebook’s Terms of Service, even if an executor has the legal authority to deal with digital assets, that authority may not necessarily be recognized by Facebook.
It turns out that this is a well-known problem. These online service provider “custodians”, such as Facebook, often limit access rights to the user’s account based on restrictive Terms of Service agreements.
Legislative Response
There is even a legislative response to this issue. In the United States, the American Uniform Law Commission approved the Uniform Fiduciary Access to the Digital Assets Act (“American Legislation”) Since then, it was enacted in 47 states.
In Canada, the Uniform Law Conference of Canada (“ULCC”) established a Working Group to look at the issues relating to access to digital assets by fiduciaries. Their goal was to consider legislative options to allow fiduciaries easier access to the deceased’s digital assets after death or incapacity. It was meant to directly address the restrictive user service agreements forced onto digital account users. ULCC Working Group concluded that uniform legislation in Canada ought to be informed by and consistent with the American Legislation to encourage US-based custodians to comply. ULCC even adopted the Uniform Access to Digital Assets by Fiduciaries Act (“Uniform Act”) so that Canadian provinces and territories can have a precedent to work off of.
Unfortunately, the ULCC’s proposal has not taken off in Canada like it has in the United States. To date, only Saskatchewan and Prince Edward Island have enacted legislation adopting ULCC’s proposal. Ontario has not.
“Accessing” digital assets
Facebook does have a process in place that allows to “manage a deceased person’s account“. However, this will either “memorialize” the deceased person’s account or remove the account from the platform. Either way, Facebook will block anybody from accessing the deceased person’s account. The challenge in accessing John’s account remains.
Please let us know if you had success “accessing” the digital assets of a deceased person. In the meantime, remember to keep in mind these challenges whether you are succession planning for your own digital assets or preparing to administer someone else’s.