Could your Facebook account put the executor of your Will at risk?

19 December 2018

So much of what we do in our lives is now carried out online, so it’s not very surprising that we’re now including access to our digital assets if not in our Wills, in letters of instruction to our executors. However, you may find that by including such instructions, you could actually be putting your executor at risk.

Wills which instruct executors to access accounts like Facebook and iTunes by providing login details may be directing their executors to commit acts which breach the terms and conditions of their agreements/contracts with these companies, consequently putting their executors at legal risk.

If you’re looking to deal with digital assets into your estate planning you should seek legal advice to ensure your executors are protected if they carry out your instructions. An executor should be able to carry out their duties without the fear of legal repercussions.

A beneficiary under a Will who is aggrieved with the actions of the appointed executor could seek to have an executor removed on the grounds that the executor has performed an illegal act by following the instructions of the deceased.

While it may be under the testator’s instructions, accessing something like a Facebook account or Kindle Books with the login and password provided by the testator, is a breach of the licence agreement entered into by the deceased. This breach may be sufficient grounds to seek the removal of an executor by a disgruntled beneficiary. The removal of the executor whom was merely following the testator’s instructions could impede the timely administration of the estate. Even something as simple as instructing the executor to login to your Facebook account to delete unflattering photos is instructing your executor to break the law.

A survey conducted from academics at Charles Sturt University and the University of Adelaide found 71 per cent of respondents didn’t know what would happen to their digital assets in the event of their deaths.

As families come together at Christmas time, many take the time to discuss their affairs including their estate planning. Families who are having these conversations should also be mindful of discussing digital assets. So many people don’t think about the potential complexities around their digital assets and some may not even think of them as assets!

As more digitally literate and active Australians age, it will become more and more important to consider digital assets when reviewing your estate planning.

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