Instagram, the next challenge for wills

BarcelonaWhat should we do with the social media profiles of someone who has died? And with all the other accounts where they stored photos, emails, and contacts? How can we ensure that our online usernames will disappear with us or that they will continue to be managed as we would have liked? Among the legal experts consulted, there are different opinions on whether or not it is necessary for social media to be part of a will, but they agree that it is an option that will most likely gain significant popularity in the coming decades. The reason? That more and more people are living completely digital lives, many of whom own social media profiles with thousands of followers, or whose social media accounts are a source of income, such as those from the United States. influencers.

For inheritance law specialist Tatiana Cucurull Poblet, PhD and professor of civil law at the Open University of Catalonia (UOC), the best option is to designate a person in the will who will manage all digital matters. This figure, called digital executor, will be responsible for enforcing the written wishes. "With a will, everything is more secure, and you can leave instructions such as passwords and what you want done with the accounts: delete them, convert them into a memorial profile, or, for example, publish a photo of me every day or remember my death every month," explains Cucurull.

The most complicated thing in this case, he admits, is how to transmit the passwords confidentially, since if we follow the security advice, we will likely have updated them from the time the will was made until the networks are in the hands of this digital executor. Therefore, Cucurull recommends leaving these passwords written down in a document attached to the will or even in a private document, which can be kept, for example, on a personal computer, so that it is not necessary to make a new will every time the passwords are updated.

Since 2017, the Catalan Civil Code has included the concept of digital wills, allowing users to designate someone to take over their online accounts after their death and to ask platforms to close them or recover the digital files on their servers. However, notary Pablo Vázquez acknowledges that this approach "has not been very successful." "There is no culture to establish what should happen with social media," he laments. Vázquez, a member of the board of directors of the Notarial Association of Catalonia, believes this is explained by the fact that these same functions can already be performed by the heir designated in the will or, failing that, by the heir corresponding by blood.

Can social media be inherited?

The difference between an heir and the figure of the digital executor, Cucurull points out, is that social media accounts "cannot be inherited as such if there is no economic value." The exception would be the profile of a influencer, or a page with advertising that generates economic returns. "In this case, it will be received by the heir or whoever the will indicates. But a more anonymous profile is not really an inheritance," Cucurull clarifies.

The digital will was regulated at the state level in 2018 within the law on the protection of personal data and the guarantee of digital rights. It establishes that relatives or heirs can ask the platforms to access the user's content and give instructions "on its use, destination, or deletion," following the instructions of the deceased if they left one. Cucurull warns that the regulation does not specify to what degree of consanguinity this access can be claimed, nor does it foresee that controversial situations may arise in which different relatives claim it. "There are no cases yet because all of this is very new and has not yet been put into practice, but in a few years we will encounter it, when the younger generations who really use social networks die. It can happen with a very large account or a influencer, that the brother wants to keep it active and the sister doesn't. What should be done?

Although someone can ask someone else to continue managing their networks after they die, Vázquez questions whether they can be used in another person's name due to the risk of identity theft, even if it is already a relative. In fact, Cucurull warns that they have ended up in the hands of a stranger, and the name of the deceased has been used to commit scams or fraud. The problem is if the heirs don't know that the account exists, then the problem can't be solved," warns Cucurull.

The jurist regrets that at the moment the law is very generic and that there are still "many loose ends" to clarify what happens in certain situations. that "from the time things happen until legislation is passed on the matter, years go by"