When one dies, property is dealt with under the terms of a Will or in default of a will by Letters of Administration (“Letters”) from the relevant Supreme Court of a State. Once the Court has granted Probate or Letters, the deceased’s Executor can deal with items of property, and in the event that all property is jointly owned (typically by a deceased and their spouse), the Executor will only need a certified Notice of Death to have the property dealt with.
In the context of a death, there remains the question of what happens with a deceased’s Facebook page. A Facebook page with all its photo’s, communications and memories will remain.
Facebook has its own guidelines on what happens in the event of a person’s death, and these largely reflect the state of the law for personal property. A Facebook page may be removed and all the data deleted at the request of a deceased’s Executor, and this requires production of the Certificate of Death and/or Grant of Probate. There is however, no Australian legislation that specifically addresses the question of such “digital assets” as Facebook.
Apart from wishing to remove a Facebook page in its entirety, an Executor may also wish to preserve the page but to close off any access to it. The guidelines also deal with this, providing that where access is being sought to such pages, such access is strictly limited and often refused. Also a deceased’s person’s page may be “memorialised” where it cannot be logged into or changed in any way but where the page will remain and can be viewed.
There remains the question of whether Facebook’s guidelines and practices are sufficient in themselves or whether there is a need for statutory regulation.
In the USA a number of the states have or are considering introducing, legislation that will specifically deal with digital assets. In Virginia for instance an executor may obtain control over all Digital accounts, emails, social media, blogs and online text message services.
As Facebook’s guidelines currently stand there seem s no particular need for legislation in Australia. This does however beg the question of what other or similar digital assets currently exist or may come into existence in the near future.
Given that an Executor is meant to and should be, able to take control over all assets of a deceased, it would be desirable that they be specifically empowered to take over or to remove any such digital assets. This might be comprehensively dealt with by copying the legislation of Virginia or possibly and more easily with a short amendment to the State Succession legislation, that would specifically include all digital assets as property of an estate and therefore within the control of the Executor.
If you have any questions regarding wills, estate planning or probate please email jlucas@etiennelaw.com or phone 1300 882 032 for help.
