Incorporating Social Media Accounts Into Digital Estate Planning

Introduction

Our previous article¹ discussed the impact of digitalization on an individual's wealth, and emphasized the need to incorporate digital assets into one's legacy. As social media platforms transition from simple spaces for interaction to crucial assets generating significant income and value, recognizing them in estate planning becomes essential. This inclusion ensures that the wealth created and shared on these platforms continues to serve its intended purpose and benefits the right individuals or entities after one's passing.

Understanding the Value of Social Media Accounts

Social media platforms cover a wide array from simple messaging apps like WhatsApp and Telegram, to social networks such as Facebook, Twitter, Instagram, and LinkedIn as well as monetized sites. For many, particularly creatives and entrepreneurs, these platforms are more than communication tools; they are vital assets that generate significant income and enhance product and service promotion, boosting customer engagement and sales.

These platforms also hold sentimental value, storing personal histories, professional achievements, and community projects that can be monetized or recognized. Social media is crucial for building personal brands and professional networks, expanding career opportunities and business growth.

The rise of roles like social media managers, influencers, and content creators has created many full-time and part-time jobs, significantly fueling e-commerce and economic growth. According to UN estimates, the creative economy industries generates $2.25 trillion annually and supports 30 million jobs worldwide.² The creative economy contributes over 6.1% to global Gross Domestic Product (GDP), averaging between 2% and 7% of national GDPs around the world. In Nigeria, the entertainment sector now accounts for about 1.45% of the national GDP as reported by the International Monetary Fund (IMF).³

The economic impact of social media is highlighted by regulatory measures in Nigeria, such as the Corporate Affairs Commission (CAC) directive requiring content creators to register their businesses under the Companies and Allied Matters Act, 2020. The move aims to integrate content creators into Nigeria's formal economic and tax systems, highlighting the sector's economic significance.

Legal Provisions for Social Media in Digital Estate Planning

The regulation of social media accounts for digital estate planning varies widely by jurisdiction and is still evolving. Some countries have specific laws or regulations targeting digital estate management, including social media accounts, while others apply existing laws related to inheritance, privacy, and intellectual property.

In Nigeria, there are currently no specific laws that explicitly govern the management or transfer of social media accounts after an account holder's death. In contrast, the United States has established a comprehensive framework with the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA)⁴, which provides guidelines for fiduciaries to access digital assets, such as social media accounts, post-mortem or during incapacity. Similarly, in Canada, regions like British Columbia have implemented the Uniform Access to Digital Assets by Fiduciaries Act 2016⁵, which also supports fiduciary access to digital assets.

Under RUFADAA, digital assets include email accounts, social media profiles, electronic communications, online banking accounts, and digital files. RUFADAA allows fiduciaries to access a person's digital assets if authorized in estate planning documents or appointed by a court. In the absence of prior consent, the terms of service of each social media platform dictate the possibilities for fiduciary access. RUFADAA prioritizes individual control over digital legacies with a three-tier system, placing online tools over estate documents and Terms of Service Agreements.⁶

Thus, RUFADAA ensures that individuals can explicitly direct how their fiduciaries manage their digital assets through their estate plans. It also outlines procedures for fiduciary access when no prior consent is given and requires digital asset custodians to establish reasonable processes for addressing fiduciary requests.

The Urgency for Digital Estate Planning Legislation in Nigeria

As digital platforms increasingly become central to personal expression and commerce, the need for robust legislation to regulate digital estate planning in Nigeria becomes more urgent. Learning from frameworks in the U.S. and Canada, Nigeria can adapt these established practices to suit its unique legal and cultural context.

Such legislation would allow individuals to maintain control over their digital legacies by clearly specifying who can access and manage their online accounts posthumously. It would also set fair default rules for the distribution of digital assets in the absence of a will and ensure digital assets are treated on par with physical assets in estate distributions.

Currently, the lack of clear legal directives leads to confusion, disputes among heirs, family members, and legal confrontations with service providers, all trying to determine the rightful management of digital assets. Moreover, clear legislation would simplify the estate planning process, minimizing the potential for misunderstandings or errors when managing digital assets. Effective digital estate planning laws should respect and mirror individual preferences, empowering them to set access levels for their executors or personal representatives. These laws must also align with existing privacy regulations and other relevant legal frameworks to ensure adherence to broader legal principles.

Key Considerations in Incorporating Social Media into Digital Estate Planning in Nigeria

While recognizing the importance of including social media in estate planning, several areas need careful consideration to ensure effective management of digital assets after death:

1. Data Privacy Concerns: In Nigeria, data privacy regulations are still evolving, which may complicate the management of digital assets. It is crucial to balance the rights to access digital assets with the need to safeguard privacy under the Nigeria Data Protection Act 2023 (NDPA) and Nigeria Data Protection Regulation (NDPR).
2. Conflicts Between Platform Policies and Laws: Global social media platforms often have terms of service that may not align with Nigerian estate laws. For example, these platforms might restrict access to accounts upon the account holder's death, creating conflicts with Nigerian inheritance laws. Thus, assets holders must be careful to ensure their estate plans do not conflict with existing policies and laws.
3. Evolving Nature of Digital Platforms: Digital platforms are often characterized by frequent updates to policies or discontinuation of services. Therefore, Nigerian digital assets holders should develop strategies to keep digital estate plans adaptable to changes in platform policies.

Addressing the above is key to facilitating more informed discussions and crafting effective policies that enhance the management of digital legacies in Nigeria. This effort will not only assist individuals in protecting their digital assets but also help regulators navigate this complex and evolving area of law.

Practical Steps for Integrating Social Media into Digital Estate Planning

While future legislation in Nigeria may provide a legal framework, effective digital estate planning still fundamentally relies on individual consent and explicit instructions. Here are essential steps individuals can take to effectively incorporate social media accounts into their estate plans:

1. Inventory of Digital Assets: Create a comprehensive list of all digital accounts, including login IDs, passwords, and any monetized platforms along with their revenue streams.
2. Evaluate Social Media Account Value: Determine the economic and sentimental value of these accounts, considering their potential for generating long-term income.
3. Appoint a Digital Executor: Select a reliable individual to manage these assets, ensuring they fully comprehend their responsibilities. The selected individual could also be a beneficiary of the social media accounts.
4. Provide Clear Instructions: Specify preferences for each account — whether to be continued or closed after a certain duration or landmark, memorialized, or deleted and how monetized accounts should be managed.
5. Secure and Backup Data: Use secure methods like encryption to protect login and access information. Regularly update and back up information to guard against unauthorized access, theft, or loss.
6. Document the Plan: Incorporate digital estate plan into overall will or trust.

By following these steps, individuals can ensure their digital legacies are managed according to their wishes and protected, mitigating risk of future conflicts.

Ensuring Your Digital Legacy

Strategic digital estate planning is essential for safeguarding your social media accounts, ensuring they align with your personal desires while complying with legal regulations and platform policies. At SimmonsCooper Partners, our family and wealth management team is ready to help you navigate the complexities of protecting your digital assets.

Our services extend beyond traditional estate planning, providing specialized consultation and legal advice tailored to the unique requirements of digital asset management. Whether you're looking to incorporate social media accounts into your estate plan, protect your online presence for future generations, or ensure your digital estate planning is compliant with current laws and platform policies, our experts are here to offer guidance.

For more detailed information or to schedule a consultation, please contact Funmilola Mesaiyete, Oluwaseyi Adebayo or Sharon Omoregie.

Footnotes

1 'From Bytes to Heirs: Digital Estate Planning in Wealth Management' (SimmonsCooper Partners, March 18, 2024) - https://www.mondaq.com/article/1440920

2 https://www.thepolicycircle.org/minibrief/the-creative-economy/ (Accessed on May 8 2024).

3 The International Trade Administration, Nigeria - Country Commercial Guide – Media and Entertainment - https://trade.gov/country-commercial-guides/nigeria-media-and-entertainment (Accessed on May 8, 2024).

4 'Fiduciary Access to Digital Assets Act, Revised' - https://www.uniformlaws.org/committees/community-home?communitykey=f7237fc4-74c2-4728-81c6-b39a91ecdf22&5f3d6ce4-bbc3-44da-ac7d-7c92de9acbfa=eyJsaWJyYXJ5ZW50cnkiOiJlOWY4NWQ3Yy0xM2YzLTQ5MTgtYTAwMC0wYWJlN2ZhYjdmNjIifQ%3D%3D (Accessed on May 13, 2024).
5 'Uniform Access to Digital Assets by Fiduciaries Act' (2016) - https://ulcc-chlc.ca/ULCC/media/EN-Uniform-Acts/Uniform-Access-to-Digital-Assets-by-Fiduciaries-Act-(2016).pdf (Accessed on May 13, 2024)
6 Raymond E. Brown, "RUFDAA Explained" https://raymondbrownlaw.com/rufadaa-explained/ (Accessed on April 25, 2024)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.