I’m sure that you have considered this before: “Who takes over someone’s Facebook account once their gone?” Or, “How can I make sure my kids can access my Instagram photos if I leave?” Let’s face it, in today’s day and time social media usage has become commonplace in our culture. According to statista.com, roughly 7 out of 10 people in America have a social media profile. While many social media and online providers have instituted processes for “leaving” access directions for their digital assets to their heirs or other individuals, in March of 2016, the State of Michigan gave Michigan residents the right to leave such instructions and directions through wills, trusts and certain other estate planning and probate tools. The following list provides a brief snapshot of the provisions of Michigan’s Fiduciary Access to Digital Assets Act (let’s call it “FADA-Mich”):
Social Media “Controls” Trump Wills
Similar to life insurance and retirement plans, beneficiary designations offered directly through the social media account trump your selection through your will or other document under FADA-Mich. For example, if you have designated your best friend as your Facebook legacy contact, using your will to give your spouse such access to Facebook will be null and void.
Access of Digital Assets Can Be Provided through Certain Estate Planning Tools
In situations where you have not utilized the social media “control” to provide access to someone, or where such social media outlet does not offer such opportunity, you can provide someone with authority (or restrict one’s potential authority) to access your social media via will, trust or power of attorney. Courts can also direct such authority in guardianship, conservatorship and decedent estate proceedings.
Social Media Companies Can Request Copies of Certain Documents
In most cases, when your appointed fiduciary or heir requests access, the social media company will likely request certain documentation to prove your limitation (death or incapacity) and the fiduciary’s authority. If these documents are not produced, or if they are produced in an improper form, the company is not required to grant access pursuant to FADA-Mich. You will want to ensure that the proper documents are available;
Social Media Companies Have 56 Days to Produce Access
Once all requested documents have been delivered to the Social Media company, access to the digital assets of your social media account must be granted within 56 days. If access is not granted within that time, your fiduciary or heir may rely on the local court to enforce the rights offered under FADA-Mich.
Having been approved in Michigan in late March 2016, FADA-Mich becomes effective on June 27, 2016. Now is a good time to update your estate plan to make known your intentions regarding access to your digital assets including social media accounts, pictures, videos, etc. You’ve been granted the right!