Facebooking from Beyond the Grave

If you’ve been named the executor of a loved one’s estate in their Will, one of your most important obligations is to make an inventory of all of the estate’s assets. The general rule on what is to be counted as an estate asset is outlined in William Sheppard’s text entitled ”The Touchstone of Common Assurances being a Plain and Familiar Treatise on Conveyancing”:

All those goods and chattels, actions and commodities, which were the deceased’s in right of action or possession as his own, and so continued to the time of his death”.

The Touchstone text was published in 1826. It’s certainly timeless in it’s application, but there are questions today that the Sheppard text may not be able to cover – namely digital assets.

When thinking of estate assets as described in the above Touchstone definition, many will include items traditionally found on an estate assets list:

  • real estate
  • bank accounts
  • personal effects

One should also consider, however, that estate assets can also include digital assets such as physical hard drives and cloud and e-mail accounts alike on top of the traditionally listed items.

It is important, then, as the Executor of the estate, when making an inventory of the deceased’s assets to also itemize the deceased’s digital assets, including computers, tablets, USB flash drives, e-mail accounts, cloud storage accounts, social media accounts. Note, then, that the same rules apply to digital assets that would apply to other “traditional” assets – the deceased must have the right to distribute the assets upon their deaths. This would require an in-depth analysis of the user agreements for each of the digital assets – not all digital assets are transferrable upon death.

Without direction from the deceased while they were alive, Facebook will generally allow you as the Executor to delete their Facebook account upon provision of adequate proof of death such as a death certificate. Downloading the deceased’s digital content from Facebook, however, is a more difficult task, and requires more information from the Executor such as court documentation.

While considering this as an executor, your thoughts may rightfully turn to your own potential estate. It is important, then, to consider keeping an up-to-date list of not only your “traditional” assets, but also your digital ones as well as leave directions in your professionally drafted will for them in an effort to decrease the burden on the executors of your own estate. It’s also important to ensure that any wishes you make known to a digital service provider are in line with any wishes made in your will.

Facebook, specifically, gives you two options with respect to how your Facebook account will be treated upon notice of your demise:

  • Add a “Legacy Contact” – one lucky Facebook friend will get to manage your account after you pass away, and they’ll be able to make limited changes to your profile – according to Facebook, this includes the ability to make one last post, but not the ability to message people from beyond the grave. If you allow your Legacy Contact to download an archive of your digital information, Facebook will offer them photos and videos, wall posts, profile and contact info, info on events, and a friends list. What they will not receive, however, are more personal bits of information such as your messages and the people you’ve poked. Facebook won’t release this information unless the wishes are expressed clearly in a will or a consent document.
  • Delete your Account – with this option, according to Facebook, all of your information, including all photos and posts will be permanently removed from Facebook and no one will be able to see your profile again.

The above discussion is far from a complete discussion of the heavy burden that the Executor of an estate carries. This article is not legal advice – if you have any questions with respect to whether or not something is an estate asset, you need to meet with an estates lawyer who will thoroughly discuss your matter and explain your legal options. Call Zeeshan S. Baig, Toronto Probate Lawyer at (647) 771-0130 or e-mail us at lawyer@zeeshanbaig.com to set up your estates consultation today.