Oregon Governor Kate Brown signed a law this month that allows for the legal access of digital assets. Oregon is the first state to draft a law that specifically provides for the transfer of assets such as Facebook and Instagram accounts. In California, one is able to bequeath access to digital accounts in their will or trust, but there are no specific legal guidelines that direct the facilitation of said assets by the companies that own them.
Oregon's new law - SB 1554 - came about because of exactly this situation. Ten years ago Beaverton mother Karen Williams lost her son to a motorcycle accident. After his death, she wished to keep her son's Facebook account up and running "for at least a year" so that friends and family could visit and remember him, particularly at the one year anniversary of his death. Ms. Williams said Facebook would not allow her to keep the account, and it was deleted. The new law is a tool that allows people to provide instructions for what they want to happen to their social media accounts after they die. SB 1554 provides guidance on how to legally grant access to your accounts in Estate Planning documents. The law also lays out guidelines and procedures that social media account companies must follow to transfer digital assets. SB 1554 specifies the legal requirements and duties of digital sites with personal accounts to provide the information of the deceased.
Will California be next to adopt a similar law? With the growing number of social media sites such as Facebook, Instagram, Snap Chat, and others, what happens to accounts when the owner passes away is becoming more and more relevant. In addition to parents or children who may wish to keep accounts active for posterity, there are some accounts that heirs will want stay up and running for financial reasons. As social media has grown in terms of popularity, companies and individuals alike are cashing in on the opportunity to use them as a selling tool. While larger companies might have a team that manages their social media sites, smaller companies and artists selling their own work are more likely to have personal accounts. And those personal accounts could be the engine that drives their sales. In these instances, social media accounts have essentially become valuable financial assets. For example, I have a good friend whose mother, a fantastic artist, recently passed away. One of the ways in which her mother sold her artwork was through Facebook and Instagram accounts. My friend happened to know the login information for each account, and has been able to adjust each site and keep them going. But what if she didn't know all her mother's relevant passwords? What would happen to the digital accounts, and the income generated by them?
As social media platforms continue to expand and infiltrate the fabric of our society, it will become necessary for each and every state to adopt probate laws that provide for the legal transfer of these accounts when their owner dies. The longer state governments take to address estate planning guidelines for digital asset protection, the greater the risk becomes for lawsuits.