The Singapore Law Gazette

Navigating the Digital Afterlife: Estate Planning for Your Online Presence

In a world where our online lives are as rich as our offline ones, what happens to our digital presence when we are gone? We examine how current estate planning laws do not amply deal with how digital accounts are dealt with upon death, and propose a roadmap for integrating digital legacies into wills.

Think about your social media accounts — your Facebook filled with friends and family, your Instagram capturing moments of joy, or your Twitter sharing your thoughts with the world. These platforms have become much more than just apps; for many of us, they have become an inextricable part of who we are. But when we pass away, these pieces of our digital self, unlike our physical self, are left floating in the online world. And with their owners gone, these accounts are left in limbo. Herein lies a curious but increasingly pertinent question: can we decide what happens to our digital selves after we are gone?

Our traditional understanding of assets that form part of a deceased’s estate has been clear-cut. An individual’s estate broadly includes their money, property (such as real estate, financial securities, possessions, and other assets), as well as their liabilities (such as debts).¹Family Justice Courts, “Estate”, <https://www.judiciary.gov.sg/family/probate-and-administration> (accessed 10 December 2023) Assets with a monetary value, including tangible ones like houses and cars or intangible ones like stocks and bank accounts, can be passed on to heirs through wills or through intestacy laws in the absence of a will. This process is well-established and recognised by legal systems worldwide. However, the advent of technology casts the spotlight on a new and less understood category: digital assets. This includes digital accounts and content such as social media profiles, photos, and videos.²NASDAQ website “About digital assets”, <https://www.nasdaq.com/solutions/marketplace-technology/about-digital-assets> (accessed 10 December 2023) and Development Bank of Singapore Limited website “What are digital assets”, <https://www.dbs.com.sg/personal/articles/nav/investing/what-are-digital-assets> (accessed 10 December 2023) While it is common knowledge that physical and financial assets can be bequeathed, it is not always evident whether and how these digital assets can be transferred posthumously.

1. Laws on Inheritance of Digital Accounts are Fledgling and Rare

Only a handful of jurisdictions have laws that deal directly with the inheritance of digital accounts. And even so, these laws are often nascent.

United States

In the United States, the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) of 2015 establishes foundational guidelines for inheriting digital assets. This act serves as a model for individual states to craft their own laws on digital asset inheritance. Under the RUFADAA, fiduciaries are required to disclose the contents of digital communications, including digital assets like social media accounts, to the estate’s executor. The executor can access these digital assets but must first obtain court approval, demonstrating the relevance of these assets to settling the estate. If the deceased did not specify access arrangements for their digital assets in their will or power of attorney, the executor must adhere to the terms of service agreements of the respective digital platforms.

Several states have taken guidance from the RUFADAA and implemented measures to address the management of digital assets after death. For instance, Oklahoma enacted legislation that empowers executors or administrators to control, manage, or terminate a deceased’s accounts on social networking sites, e-mail services, and similar platforms.³Oklahoma Statutes Title 58 (Probate Procedures) §58-269 Executor or Administrator – Powers <https://oksenate.gov/sites/default/files/2019-12/os58.pdf> (accessed 10 December 2023) Similarly, in Idaho, the law specifically allows estate conservators to access and manage online accounts of the deceased.⁴Idaho Statutes Title 15 (Uniform Probate Code) §15-5-424.3(z) Powers of conservator in administration<https://codes.findlaw.com/id/title-15-uniform-probate-code/id-st-sect-15-5-424/> (accessed 10 December 2023)

Germany

In Germany, a significant ruling by their highest appellate court, the Federal Court of Justice (FCJ) established that social media accounts can be inherited by the deceased’s heirs.⁵German Federal Court of Justice (Bundesgerichtshof, BGH) Urteil vom 12. Juli 2018, Az. III Case no. ZR 183/17 In this case, a teenager died in a suspected suicide involving an underground train. The train conductor filed a tort claim against the teenager’s parents. In defence, the parents sought access to their daughter’s Facebook account so that they could locate evidence indicating suicidal thoughts that may shed light on the nature of her death.

Facebook initially denied the parents’ request for access, citing their terms and conditions and requirements of privacy of telecommunications under section 88 of the German Telecommunications Act.⁶German Telecommunications Act §88 Abs. 3 TKG <https://rm.coe.int/16806af19e> (accessed 10 December 2023) However, the FCJ ruled in favour of the parents, stating that the principle of universal succession under section 1922(1) of the German Civil Code takes precedence. This provision should be read to give heirs the right to inherit a deceased’s social media accounts.

The FCJ also noted that while the terms and conditions of some social media platforms might include terms to disallow account inheritance, such provisions would be invalid if they conflicted with statutory regulations. Finally, the FCJ observed that telecommunications secrecy laws should not prevent heirs from inheriting social media accounts because heirs are not considered third parties; rather, heirs step into the deceased’s position, and should therefore be permitted to access the deceased’s accounts as though they were the owner. This decision makes clear that, in Germany, social media accounts can be passed on to heirs, just like physical and financial assets.

Other Countries

Unfortunately, most countries still lack specific laws for the inheritance of digital assets. This absence of clear legal guidance leaves a significant gap in how digital assets, particularly social media accounts, are treated after death.

A notable example of this legal ambiguity can be found in the European Union’s approach to digital privacy and inheritance. The General Data Protection Regulation (GDPR) is a landmark law that significantly impacts how personal data is handled by internet companies. Under the GDPR, individuals have rights concerning their personal data, including the right to access⁷GDPR, Article 15. <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R0679> (accessed 10 December 2023) and the “right to be forgotten”.⁸Also known as the “right to erasure”. GDPR, Articles 17 and 19. <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R0679> (accessed 10 December 2023) These provisions allow individuals to request the deletion of their data by data controllers. However, the GDPR’s scope does not extend to the personal data of deceased persons. Article 1 and Recital 27 of the Act make it abundantly clear that the regulation is applicable only to living individuals. How the data of deceased persons should be dealt with is a matter left to the discretion of member states.

This distinction highlights a fundamental perspective within the EU: personal data is not considered a form of property and, therefore, cannot be traditionally sold, inherited, or disposed of. More importantly, it would appear that an heir cannot apply the “right to be forgotten” to a deceased’s social media content in a bid to have that content deleted.

2. Managing Digital Accounts in a Will

Singapore has no specific laws or regulations on what happens to digital accounts after death. Therefore, we shall work within the context and confines of current probate and testamentary laws to propose the following framework for dealing with digital assets after death.

We start with an important premise: there are no laws or regulations expressly prohibiting a testator from addressing their digital assets and online presences in a will. This means one is free to do so, but subject to the following practicalities.

Practicalities of Dealing with Digital Accounts in a Will

Appointing a digital executor

First, while it is possible to appoint one executor to deal with both conventional and digital assets under the will, there might be some merit to appointing two executors: one for conventional assets and another to specifically manage the digital accounts. We suggest separate executors because dealing with digital accounts requires a specific skillset, one which a traditional executor proficient at managing conventional assets may not have. Within current probate laws, there is nothing preventing a testator from carving out specific portions of the estate to be dealt with by a particular executor.

The ideal digital executor should be adept at navigating various online platforms, understanding their terms of service, and respecting privacy and confidentiality. They need to be detail-oriented, as managing digital assets involves dealing with numerous accounts, each with its unique protocols. In selecting a digital executor, a testator might consider a tech-savvy family member or trusted friend. The key is choosing someone who combines technological proficiency with a high degree of trustworthiness and respect for the testator’s intentions.

If a testator decides to appoint two executors, this split appointment as well as the duties of each executor must be clearly spelt out in the will.

Identifying all digital accounts

Second, the testator must clearly identify which digital accounts need to be managed after his or her passing. This involves first doing a quick audit of all social media and online presences a testator has at the time of making the will (for example, Facebook, Instagram, Twitter, LinkedIn, TikTok, etc). These accounts can be set out in the Schedule of Assets that usually accompany a will.

Deciding how the accounts are to be managed after death

Third, the testator must decide how each of these digital accounts are to be dealt with by the digital executor. Different social media platforms have different rules on what can happen to an account after its owner dies. It is important for a testator to briefly understand these different policies and what each platform permits.

After understanding the various social media platforms’ policies on handling accounts posthumously, a testator must explicitly state in their will how the social media accounts they own are to be managed after their death. It is important that these wishes accord with the specific policies of each platform. If a testator’s directions contradict or exceed what is permitted by a platform’s policy, the executor becomes placed in a difficult position, and may potentially be unable to fulfill these specific wishes. For example, asking for a TikTok account to be memorialised when the platform’s policy does not allow such a function may force an executor to delete the account (which is the only action allowed for by TikTok’s policy) against the testator’s actual wishes.

A testator can also exercise some level of flexibility or creativity in articulating their wishes, as long as they keep within the bounds of the platform’s policies. For instance, one can stipulate for their Facebook account to be left untouched for three months from death so that family and friends can leave tributes on it. In this time, the executor may be tasked with downloading all photos from the Facebook account, saving them, and handing them to a desired next-of-kin so that these photos can be kept and passed down. Thereafter, the account is to be memorialised for a further one year, after which the account is to be deleted. This provides a fixed timeframe within which one’s data can be stored and one can be remembered and mourned. After that, deleting the account signals time for loved ones to move on and to remember the deceased in other ways.

We set out a brief overview of the major platforms and their policies below.

(a) Facebook⁹Facebook website, “Managing a deceased person’s account”, <https://www.facebook.com/help/1111566045566400> (accessed 10 December 2023)

Facebook offers several options. A user’s account can be memorialised upon request by a close friend or family member. This is signified by a “remembering” badge added to the profile. Although the content remains visible, the profile ceases to appear in public searches or friend suggestions. Facebook also allows users to designate a legacy contact. Legacy contacts can manage certain aspects of the account like accepting friend requests and updating profile pictures, but cannot log into the account or view private messages. Additionally, immediate family members or executors can request the removal of a deceased’s account by providing Facebook with identification and a death certificate or, if unavailable, other proof of authority and death.

(b) Instagram¹⁰Instagram website, “Report a deceased person’s account on Instagram”, <https://help.instagram.com/264154560391256> (accessed 10 December 2023)

Instagram, being owned by Facebook, follows a similar policy. Accounts can be memorialised upon proof of death. Alternatively, accounts can be completely deleted. Again, this would require furnishing Instagram with official proof of death such as a death certificate.

(c) Twitter¹¹Twitter website, “How to contact X about a deceased family member’s account”, <https://help.twitter.com/en/rules-and-policies/contact-x-about-a-deceased-family-members-account> (accessed 10 December 2023)

Twitter’s policy allows verified family members or executors to request for deactivation of a deceased user’s account. Twitter reserves the right to review such requests, and may decline to deactivate an account if it deems the account to be newsworthy. Notably, Twitter generally deactivates accounts after six months of inactivity even if no deactivation request is submitted. There is no option for an executor or family member to obtain access to the deceased’s account.

(d) Snapchat¹²Snapchat website, “Submit a request”, <https://help.snapchat.com/hc/en-gb/requests/new?start=5640758388326400> (accessed 10 December 2023)

Snapchat does not have an extensive policy for deceased users. The platform will delete an account upon presentation of a death certificate, but does not allow account access.

(e) TikTok

Likewise, TikTok’s policy for what can happen to a deceased’s accounts lacks details, which is unusual given the platform’s widespread popularity. It appears that one can e-mail TikTok to request for deletion of an account belonging to someone who has passed away, but nothing more than that.

(f) YouTube¹³Google website (link from YouTube), “Submit a request regarding a deceased user’s account”,<https://support.google.com/accounts/troubleshooter/6357590?hl=en#:~:text=We%20can%20work%20with%20immediate,secure%2C%20safe%2C%20and%20private> (accessed 10 December 2023)

YouTube, a part of Google, offers an “inactive account manager” tool, which allows users to specify what happens to their accounts after a period of inactivity. These include options like shutting down the account or sharing certain data with designated contacts. To permanently deactivate a deceased person’s account, immediate family or an executor must provide relevant identification and a death certificate.

(g) LinkedIn¹⁴LinkedIn website, “Deceased LinkedIn member”, <https://www.linkedin.com/help/linkedin/answer/a1380121/deceased-linkedin-member?lang=en-us&intendedLocale=en> (accessed 10 December 2023)

LinkedIn provides the option to either delete or memorialise an account. The deceased can authorise a trusted person to request for account deletion posthumously. This trusted person must submit details such as the account holder’s name, profile URL, proof of death, and proof of relationship to the deceased. An executor may also submit relevant proof and request for closure of the account. If an account is to be memorialised instead of deleted, the account remains with limited functionality. The words “in remembrance” appear alongside the deceased’s name, with preserved posts and message history, but no option for new messages or connection requests.

Keeping a separate record of all access details

Fourth, a testator must provide all details and credentials required for the executor to access the digital accounts. These details include account names, passwords, answers to security questions, backup e-mails, and all other information required by the platform to verify a user’s identity. Consolidating these details will require some work on the testator’s part, and may involve comprehensively updating the login processes of all the digital accounts specified in the testator’s will.

However, such a record of these credentials should be kept separately from the will. This is because the will becomes a public document during the probate process, and it is clearly undesirable for one’s login details to enter the public domain, even after one’s death. A password management app or tool can be a good way of storing and consolidating access details across multiple platforms. The testator only then needs to provide the executor with the master login details to the password management app or tool. Regardless of where and how the testator chooses to keep records of their login credentials, the testator should inform the executor as to the whereabouts of such a record. Alternatively, a note can be attached to the will with instructions on how to access this record.

3. The Role of Probate Lawyers in a Digital Age

As we venture further into the digital age, the role of lawyers in guiding clients through incorporating digital assets into their wills becomes increasingly significant. Lawyers, especially those specialising in probate and wills, should ensure that clients are not only aware of, but also understand, how to effectively manage their digital legacies.

Lawyers should begin by informing and reminding clients about the importance of including digital assets in estate planning. This step is crucial as many individuals may not realise that their digital accounts can and should be addressed in their wills. Lawyers then need to explain the various management options available for digital accounts after death. This could involve detailing the processes for account memorialisation, deletion, or suspension that are unique to each specific digital platform. Again, this is crucial as most people, even those who are adept at using social media, may not be aware of such options.

As part of the will-writing process, lawyers can aid clients in creating a detailed inventory of their digital accounts as a part of their Schedule of Assets. This encourages clients to think about and specify how each account should be handled upon death. The lawyer can then translate the client’s input into suitable language for the will.

Lastly, staying abreast of legal developments in digital asset management is vital for lawyers. This ensures that they can provide accurate and current advice to their clients, especially when dealing with emerging platforms and with policies that may change over time.

4. Conclusion

This article has explored the complex and evolving landscape of managing digital assets in the context of estate planning. We have seen that while some jurisdictions, like the United States and Germany, are beginning to establish legal frameworks for the inheritance of digital assets, most countries, including Singapore, lack specific legislation in this area. The absence of clear legal guidelines creates challenges in ensuring that digital legacies, such as social media accounts, are managed according to the deceased’s wishes.

While digital asset management in estate planning might not seem pressing currently, it is likely to become a more prominent issue in the near future. With the advent of technologies like Web 3.0 and the Metaverse, more aspects of our lives are moving onto digital platforms. Correspondingly, the importance of incorporating digital accounts into wills is set to increase significantly as an essential aspect of estate planning.

Courts are expected to encounter increasing cases involving digital assets in probate. This emerging trend may see a need for the judiciary and legislature to develop clear and comprehensive laws to guide the management of digital assets after death. Such legislation would not only provide much-needed clarity and direction for individuals planning their estates but also for executors tasked with managing these digital legacies.

Our online presence as an integral part of our identity and legacy must be managed respectfully and sensitively even after death. It is imperative for individuals, legal practitioners, and policymakers to recognise and adapt to this shift, and to ensure that our digital legacies are managed with the same care and foresight as our physical and financial assets.