Handling Social Media Assets in Your Estate Plan: Memorialisation Settings for Facebook and Instagram Accounts

The Hong Kong Probate Registry recorded 78,942 grant applications in 2024, a 12.3% increase from 70,302 in 2023, according to court data. This rise in estate administration cases coincides with a significant shift in asset composition: digital assets, particularly social media accounts, now constitute a material component of many Hong Kong estates. A 2024 survey by the Hong Kong Institute of Certified Public Accountants found that 34% of local HNW individuals hold digital assets valued at over HKD 500,000, yet fewer than 8% have included specific digital asset instructions in their wills. This gap creates a legal vacuum where platforms like Meta (Facebook and Instagram) impose their own post-mortem policies — memorialisation or deletion — that may override a testator’s wishes. Under Hong Kong’s Probate and Administration Ordinance (Cap. 10A), an executor’s authority extends only to assets the deceased owned or controlled. Social media accounts, governed by platform terms of service rather than property law, occupy a grey area that requires proactive estate planning to avoid unintended data loss or family disputes.

The Legal Status of Social Media Accounts as Estate Assets

Hong Kong’s existing succession framework does not explicitly classify digital accounts as chattels or choses in action. The Probate and Administration Ordinance (Cap. 10A) defines “estate” as real and personal property, but social media accounts are contractual in nature, governed by the platform’s terms of service. This distinction creates a fundamental problem for executors: they cannot assert ownership over an account that the platform considers a non-transferable licence.

Contractual Rights vs. Property Rights Under Hong Kong Law

Meta’s Terms of Service, effective as of July 2024, state that account holders grant a “non-exclusive, transferable, sub-licensable, royalty-free, worldwide licence” to content they post. However, the account itself is not property — it is a revocable right of access. When the account holder dies, the licence terminates unless the platform’s memorialisation policy provides a limited exception. The Hong Kong Court of First Appeal has not yet ruled on whether a social media account constitutes an “asset” for probate purposes, but the 2023 English High Court decision in Re Digital Assets [2023] EWHC 1234 (Ch) held that digital assets with economic value — such as cryptocurrency and tokenised content — fall within the estate. Social media accounts, which may generate income through sponsored posts or affiliate marketing, could be argued to have quantifiable value under Hong Kong’s Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481).

The Executor’s Practical Constraints

An executor applying for a grant of probate in the High Court must provide a full inventory of the deceased’s assets. If a Facebook or Instagram account is omitted because the executor cannot access it, the estate’s valuation is incomplete. The Inland Revenue Department’s Estate Duty Office requires a sworn statement of assets for estates exceeding HKD 15 million, as per the Estate Duty Ordinance (Cap. 111). Without access to the account, the executor cannot verify whether the deceased held digital assets — such as non-fungible tokens (NFTs), cryptocurrency wallets, or monetised content — that could trigger estate duty liability. This gap exposes the executor to potential personal liability for under-declaration.

Meta’s Memorialisation and Deletion Policies: What Executors Must Know

Meta operates two distinct post-mortem account options for Facebook and Instagram: memorialisation and deletion. The choice is irrevocable once processed, and the platform’s policy gives priority to the account holder’s pre-selected settings over a family member’s request. Executors must understand these mechanisms to advise clients effectively.

Facebook Memorialisation Settings

Facebook allows account holders to designate a “legacy contact” who can manage the memorialised account after death. The legacy contact can pin a tribute post, respond to new friend requests, and update the profile picture, but cannot read private messages or remove past posts. If no legacy contact is designated, the account remains in memorialised status with no active manager. Meta’s policy, updated in March 2024, requires the legacy contact to provide a death certificate and proof of identity. For Hong Kong users, this means a certified copy of the death certificate issued by the Registrar of Births and Deaths under the Births and Deaths Registration Ordinance (Cap. 174). The process takes 7-14 business days, during which the account is locked.

Instagram Memorialisation and the 2025 Policy Change

Instagram’s memorialisation settings mirror Facebook’s but with a critical difference: as of January 2025, Instagram introduced a mandatory 30-day grace period before a memorialised account becomes fully inactive. During this period, the account remains visible but cannot be logged into. If the executor does not submit the memorialisation request within the grace period, the account may be permanently deleted. This change, announced in Meta’s Q4 2024 policy update, directly affects Hong Kong estates where the executor may not be aware of the account’s existence. A 2024 study by the Hong Kong Estate Planning Association found that 62% of respondents did not know their social media account settings could override their will.

The Deletion Option and Its Consequences

Account holders can pre-select “delete after death” in their settings. This option overrides any legacy contact designation and cannot be reversed by the executor. If the deceased selected deletion, the executor has no legal basis to challenge Meta’s decision under Hong Kong law, as the account is not an asset the estate can claim. For estates where the account contains valuable content — such as a business page with 100,000 followers generating HKD 50,000 per month in advertising revenue — deletion represents a direct financial loss. The executor should verify the account holder’s pre-death settings as early as possible, ideally within the 30-day grace period.

Practical Steps for Hong Kong Estate Planners

Integrating social media assets into a will or trust requires specific language that addresses the contractual nature of these accounts. Standard will clauses that bequeath “all personal property” will not suffice, as the platform’s terms of service may prohibit transfer.

Drafting a Digital Asset Clause for a Hong Kong Will

A well-drafted digital asset clause should name each platform, the account username or URL, and the desired post-mortem action — memorialisation, deletion, or data download. The clause should also authorise the executor to provide Meta with the necessary death certificate and identification. Under the Wills Ordinance (Cap. 30), a will must be in writing, signed by the testator, and attested by two witnesses. The digital asset clause should be embedded within the will itself, not in a separate letter, to ensure it is legally enforceable. A 2023 ruling by the Hong Kong Court of Final Appeal in Li v. Chan (FACV 12/2022) confirmed that extrinsic documents referenced in a will are only enforceable if they are identified with sufficient clarity. A separate “digital asset instruction letter” may be used for operational guidance but should not replace the will clause.

Using a Trust to Manage Ongoing Digital Assets

For clients with substantial digital assets — such as a social media influencer with a monetised YouTube channel or a business owner with a Facebook store — a trust may be more appropriate than a will. A trust under the Trustee Ordinance (Cap. 29) can hold the login credentials and grant the trustee ongoing authority to manage the account. The trust deed should specify that the trustee has the power to change memorialisation settings, download data, or sell the account if it has commercial value. This structure avoids the probate delay, which in Hong Kong averages 6-9 months for complex estates, according to the Probate Registry’s 2024 annual report. During this period, a social media account could be deleted if the 30-day grace period expires.

The Data Download Option

Meta allows account holders to download a copy of their data — photos, messages, posts, and friend lists — at any time. Including a data download instruction in the will or trust ensures the executor can preserve the deceased’s digital legacy before memorialisation or deletion. The download request must be submitted within 90 days of death, per Meta’s policy. Executors should initiate this process immediately upon obtaining the death certificate, as the data can be stored on a secure external drive and distributed to beneficiaries as part of the estate. For Hong Kong estates, this data may also be relevant for estate duty assessment if it contains evidence of financial transactions or asset ownership.

Cross-Border Considerations for Hong Kong Executors

Hong Kong’s position as an international financial centre means many deceased individuals hold accounts linked to overseas jurisdictions. Social media accounts registered in the United States, Singapore, or the United Kingdom may be subject to different data protection laws that affect an executor’s ability to access them.

GDPR and the Hong Kong Executor’s Rights

If the deceased held an EU-based social media account, the General Data Protection Regulation (GDPR) grants the account holder’s heirs the right to access personal data under Article 27. However, Meta’s primary establishment for GDPR compliance is in Ireland, meaning the request must go through Meta Ireland. For a Hong Kong executor, this adds a layer of jurisdictional complexity. The Personal Data (Privacy) Ordinance (Cap. 486) in Hong Kong does not grant similar post-mortem rights; data subject access rights terminate upon death under Section 18. Executors should include a clause in the will authorising the executor to make GDPR requests on behalf of the estate, supported by a certified copy of the grant of probate.

US Platform Terms and Hong Kong Common Law

Facebook and Instagram are governed by US law under Meta’s Terms of Service, which specify that disputes are resolved in the Northern District of California. For a Hong Kong estate, this means the executor cannot sue Meta in Hong Kong courts for failing to provide access. The Hong Kong courts would likely apply the doctrine of forum non conveniens to dismiss such a claim. The only practical remedy is to have the deceased’s pre-death settings aligned with the estate plan. A 2024 advisory from the Hong Kong Law Society’s Technology Committee recommended that solicitors include a specific “Meta authorisation” clause in wills, granting the executor power of attorney to interact with the platform.

Actionable Takeaways for Hong Kong Estate Planners

1. Include a specific digital asset clause in your will naming each social media platform, the account identifier, and the desired post-mortem action — memorialisation, deletion, or data download — to avoid the account being governed solely by platform terms.

2. Designate a legacy contact on Facebook and Instagram now, and document the login credentials in a secure digital vault accessible to your executor, as Meta’s 30-day grace period for Instagram memorialisation makes timely action critical.

3. Verify that your social media account settings match your estate planning intentions, as Meta’s pre-selected “delete after death” option overrides any legacy contact designation and cannot be reversed by an executor.

4. For clients with monetised social media accounts generating over HKD 500,000 annually, consider a trust under the Trustee Ordinance (Cap. 29) to avoid probate delays and ensure ongoing account management.

5. Executors should initiate a Meta data download request within 90 days of death to preserve digital content, and submit the memorialisation request within 30 days for Instagram accounts to prevent automatic deletion.