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Executors to Get Access to Testators' Digital Assets in Del.

By Mark Wilson, Esq. on August 25, 2014 | Last updated on March 21, 2019

Distributing assets in a will is easy enough, but a testator's social media accounts, and their associated assets, aren't exactly amenable to being put in a box and handed over to the heirs.

Further complicating the social media picture is that there's no uniform way to access the account once the owner has died. Each platform has different procedures in place. For example, Facebook won't give out login information for a dead person, but it will delete an account or "memorialize" it, which allows only confirmed friends to see it or find it.

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Won't Someone Think of a Better Way?

Enter Delaware, which has bocame the first state to grant estate administrators broad authority to access testators' digital stuff, Ars Technica reports. Lawmakers adopted the Uniform Fiduciary Access to Digital Assets Act (UFADAA), which was authored by the Uniform Law Commission -- the same organization that authors every other "uniform" statutory recommendation.

In Delaware, the UFADAA is now set to take effect January 1, 2015. The new law applies the same legal framework to digital assets (including social media accounts and their related photos, status updates, etc.) that existing law applies to physical assets. Social media accounts become like bank accounts. It applies to any electronic communication, so it can include Facebook information, tweets, and email.

Strong Medicine

Previously, Facebook would hand over login information only through a court order. The UFADAA allows the estate's representative (or even the conservator or agent of a living person) to obtain the information by sending the social media company a certified copy of the will, trust instrument, or power of attorney.

The UFADAA is powerful: It overrides a company's terms of service to the extent they're in conflict with the UFADAA; it also overrides choice of law provisions in a terms of service agreement if that provision would limit UFADAA enforcement. Basically, if an executor sends a request to Facebook for the account information, accompanied by a certified copy of the will, Facebook will have to comply within 60 days.

State and federal hacking laws still apply, so if a scoundrel tries to use the UFADAA provisions to get at someone's login information, he can be prosecuted -- and the social media company has a safe harbor if it reasonably relied on the scoundrel's false representations.

Mo' Statutes, Mo' Problems?

Naturally, granting digital assets the same status as physical ones opens the door to all sorts of new and interesting probate fights. What if a testator's offensive tweets should be removed so that it doesn't affect the goodwill of his closely-held company, which is now in the hands of a trustee or an heir? (Just imagine if Marge Schott had a Twitter account.) What if someone else wants to leave those tweets up?

The UFADAA also doesn't grant ownership over the accounts, just access. Intellectual property concerns will have to be saved for another day.

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