Believed to be the first of its kind in the United States, the State of Nebraska has recently proposed legislation that would grant the executor of a decedent’s estate access to social media, e-mail, micro-blogging, and other similar accounts. The legislation would not apply to accounts that have been specifically addressed in a decedent’s estate plan with instructions regarding who should control the account; however, all other accounts would fall under the control of the estate executor if the legislation passes.
At the present time, how a social media account is handled upon the death of the account holder is decided by the account administrator. Social media giant Facebook, for instance, has an internal policy that creates a memorial page once notified by family members of the death of the account holder. Once the memorial page has been established, “friends” of the decedent may continue to post comments, but no one is actually allowed to log-on to the account. The Nebraska legislation is aimed at changing policies such as this one by allowing the executor of the estate control over the “asset”.
The Nebraska legislation should remind all of us how fluid the definition of “asset” is for estate planning purposes. Just a decade ago, most of us would not have given much thought, if any, to electronic accounts, files, or communications when planning our estate. In the new digital age, however, we may need to re-evaluate what needs to be included in our estate plan.
The best way to incorporate these protections into an estate plan is to work with a qualified and experienced estate planning attorney. Don’t expect any guidance on these issues from self-help estate planning books, CDs and web sites nor from the bargain-basement “trust mills”