Is Facebook a Digital Asset?

When an attorney or law student thinks about estate planning, they might think of wills, future interests, and/or trusts.  People invest in estate planning because they have “assets” or they want to make sure their loved ones are taken care of when the inevitable arises (unless you are a Highlander, in which case you can live forever).

When I think of assets, I think of real or personal property, such as your grandmother’s wedding ring, the family home, or land.  Money and investments are also apart of someone’s assets.  But what about their Facebook or Twitter page?  Would you consider your social media accounts as part of your assets?  If so, who takes control of those assets, when can they take control, and how much control can they have?  That is the question that is beginning to pop up in several state legislatures.

A Nebraska Bill (No.738) that is working it way through the legislature right now would treat social media accounts of a deceased person as “digitial assets.”  This means those accounts could be taken over by a friend or relative, who would then have the option to continue or close the account. (Reference: Washington Post)

Currently, Facebook will put profiles in a “special memorialized state” if they have been informed that a user has died.  Part of the reason they do this is to allow the deceased person’s friends to continue to post on their page.  Additionally, Facebook will also remove a page at the request of the deceased’s family members.  One thing Facebook will not do is provide log-in information (a username and password) to anyone, even the next of kin.  Only in cases where the deceased directed them to do so in a will or by a court decree will Facebook provide log-in information. (Reference: Omaha World-Herald)

So far Oklahoma is the only state that has currently passed “digital assets” legislation.  In addition, the Oregon State Bar Association hopes to propose legislation next year.  With legislation passed in one state already,  one state in the process of reviewing legislation, and another in the process of proposing legislation, one has to wonder if this idea will pick up steam in other state legislatures as well.  (Reference: Governing)


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