“Digital wealth” constitutes a far greater proportion of our estates than many realise, with our personal and business lives becoming increasingly digitalised and online.
Yet a survey for the NSW Trustee and Guardian found 83 per cent of Australians have not discussed what will happen to their social media accounts when they die and only 3 per cent of Australians with a will have given directions regarding their social media accounts.
Digital wealth needs to be included in estate and succession planning, so that on death or incapacity assets are protected and this wealth is dealt with tax effectively.
Even if you do not own an online or virtual business, this digital wealth may have the ability to produce income or be sold, but will be of no value if nobody knows it exists. Not to mention potential sentimental value where the account includes photos, memories or messages.
Its expanding net covers: online or virtual businesses, which may own goodwill or intellectual property including copyrighted materials, trademarks and code; social networks including Facebook, Instagram or LinkedIn; email accounts; blogs and domain names; music, photos and files stored online or in clouds; online accounts such as PayPal; access to financial accounts and cryptocurrencies; and hardware including computers and tablets.
Complications may arise on death due to differing account terms and differing international laws.
For example: you want to gift videos or photographs in your Will, but it depends where they are stored: if saved on a digital device such as your iPad, you can simply gift the device; if saved in the cloud, the provider’s account terms determine what happens to them.
Digital rights differ greatly from one provider to the other:
- Facebook accounts can be memorialised or permanently deleted. Content cannot be changed unless the deceased added a legacy contact. If an option is not chosen, Facebook’s standard policy is to memorialise the account.
- Instagram accounts can be memorialised, but accounts can only be removed by family members who prove they are an immediate family member. LinkedIn only offers profile removal, deleting connections, recommendations and endorsements.
- iCloud accounts are non-transferable and rights to your Apple ID or content terminate upon death. You may leave login details for loved ones to retrieve photos and other sensitive information. If not, a court order may be required, which will prove difficult and expensive.
Australia has no specific legislation yet for digital estate and succession planning or managing digital wealth. Families have no clear rights to access a deceased or incapacitated family member’s digital assets and accounts.
Without password and login details these assets can remain locked away or online indefinitely. Even with a password you may be in breach of the service provider’s terms when using that information.
There is no easy answer, but the following is currently considered best practice:
- Traditional estate and succession planning, which also covers digital wealth. This involves reviewing asset ownership and structures, proposing solutions to problems, and seeking buy-in from beneficiaries to lessen disputes later due to beneficiaries not understanding what was done and why.
- Share a list or secure location of digital accounts and wealth with trusted family members, kept securely and separate from passwords to avoid security breaches. It should not be included in the will, as the will becomes a public document if and when probate is granted.
- A letter of wishes may provide direction. This letter could cover: accounts to be closed, deleted and/or content erased; material to be downloaded and gifted to named individuals; accounts to be archived and saved; credits, points or cash values to be redeemed and transferred to particular people; and online businesses to be shut down.
- Incapacity needs to be considered, as dealing with digital wealth and social media accounts may be more urgent than on death. Account policies are often less clear on incapacity. Enduring powers of attorney should define digital assets and digital accounts, and include powers allowing the attorney to deal with them. While the power of attorney’s jurisdiction only covers Australia, it may make an account provider in a different jurisdiction more likely to accept the attorney’s authority.
- Wills should define digital assets, digital accounts and include powers for executors and trustees to deal with them.If there is significant digital wealth in other jurisdictions consider local wills and the equivalent of enduring powers of attorney in each jurisdiction, with a global Australian will covering the worldwide estate other than that situated in these jurisdictions. This may not be strictly legally required, but can facilitate the process and possibly lead to a better tax outcome.
With significant digital wealth an option could be to hold it through a trust structure separate to your estate for improved tax and asset protection outcomes. Your will must deal with who the shares in a trustee company (if there is one) should pass to and you also need to deal with succession to the office of the appointor of the trust (if there is one).
Regular reviews at least every three years, and when there is a significant change in circumstances, are important given how quickly the digital arena is changing.
James Whiley is a special counsel in the Hall & Wilcox private clients practice www.hallandwilcox.com.au
In Boulder, Colorado, Jed Brubaker is plotting ways to creep you out, and he’s reaching beyond the grave to do it. An information scientist who studies digital afterlives—how our digital identities persist after our death and how we interact with the data people leave behind—Brubaker’s team at the University of Colorado Boulder’s Identity Lab explores the fine line between technologies that comfort us in grief and those that creep us out.
To do that, the group builds prototype technologies that leverage post-mortem data in ways that might make users feel uncomfortable. These prototypes include the “map of paranoia”—a Google Maps add-on that incorporates death statistics into route calculations, allowing users to evaluate routes according to how statistically dangerous they are—as well as a simulation of an artificial intelligence system that creates product advertisements that incorporate the likenesses of deceased loved ones. Imagine, Brubaker says, an avatar of your deceased grandmother saying that a certain brand of cookie is as good as the ones she used to make.
Brubaker’s goal is two-fold. First, by understanding where people experience discomfort, the Identity Lab hopes to inform better design practices and help designers sidestep upsetting interactions between the grieving and their loved ones’ digital remnants. Brubaker also believes that exploring when, how, and what makes users feel uncomfortable can drive how systems can be created or modified in ways that help users honor their loved ones or explore those relationships in new ways. Your grandmother selling cookies from the afterlife might feel repulsive, but a system that walks you through her recipe could elicit a different feeling.
“What it means to interact with the deceased or what it means to interact with their data is something that we don’t have a really good handle on yet, and in part I think that’s because we just haven’t experimented with it enough,” Brubaker says. “What we haven’t yet seen are enough visions of what this post-mortem interaction could be like to find the ones that are actually good for us, the ones that are thoughtful and kind.”
Brubaker is one of a handful of researchers exploring ways of building human-computer interactions that consider both the living and the dead. “Thanatosensitive design,” as it’s known, includes features and devices created to memorialize the deceased and addresses issues that arise when the living need to access data from someone who’s passed as well as the barrage of privacy and computational challenges that come with making technologies sensitive to the deceased and those they leave behind.
Brubaker was originally drawn into the field nine years ago when Myspace was battling Facebook for social media dominance. He began noticing that when a user passed away, their friends and families would interact with each platform differently. On Myspace, people would talk to the dead directly, and if they directed grief-related posts towards anyone else, they would sometimes get reprimanded by the community. On Facebook, grief centered more around the grieving. People still posted on the deceased’s Facebook page, but friends and families often created their own separate spaces that focused on support networks for the ones left behind. That subtle difference changed what memories were discussed. In other words, the technology a person used when they were living, and the cultural rules around that platform, helped shape how they were remembered when they were no longer around.
Brubaker began conducting research, which led to his dissertation on how design helps grieving users on Facebook. That work later informed the design of Facebook Legacy Contact, a feature launched in 2015 that allows users to designate someone to manage their account after death.
Brubaker’s interviews showed that control matters. Grieving people generally found comfort in the memorial pages of deceased users, but when confronted with “uncanny encounters with death”—instances when algorithms showed users unexpected reminders of a passed loved one—they found the experience unsettling. Control is especially important when it comes to immersive and interactive technologies, says Debra Bassett, a Ph.D. student at the University of Warwick who studies how technology affects the grieving process. Bassett’s research shows that some kinds of reminders are more grief-disruptive than others—for example, people were far more emotionally affected when hearing an audio recording of a deceased loved one than they were when presented with a social media notification about that person. Bassett’s research also shows that, for the time being, people are generally more comfortable when the dead remain…dead. A new social media post generated on behalf of a deceased person or an interactive avatar of them is often considered “spooky, eerie,” Bassett says.
“Having said that, when you think about the dead popping up on Facebook, only five years ago people found that disturbing and eerie. That’s now acceptable.”
Texting From Beyond
Still, not everyone finds communicating with a deceased loved one, or rather a facsimile of them, to be eerie. For Eugenia Kuyda, the experience has been comforting. Kuyda is co-founder and CEO of Luka, an artificial intelligence start-up based in San Francisco. When her close friend Roman Mazurenko was killed in November 2015, Kuyda memorialized him by building an AI chatbot trained on thousands of text conversations the two had exchanged over the years. Whenever Kuyda felt waves of grief, she could send a text to a digital reconstruction of Roman and read messages sent back by a program that sounded like her friend.
“It is not about what the bot will say,” Kuyda says, adding that the bot frequently creates responses that are unlike what the real Roman would say. “It is mostly about what you’re going to say. It’s mostly your own outlet to finally say things that you wanted to tell this person, to feel those feelings, to let go, to remember.”
Having such an outlet has helped give Kuyda closure—a way to acknowledge feelings she tried to avoid after Roman’s death, a mechanism for keeping the love they shared in her daily life. But she’s quick to point out that the bot was “incredibly personal” and solely intended as a way to deal with her own grief. More than two years after building the Roman bot, she still texts with it every week or so. “It is a little bit magical for me still,” she says.
Since creating the original bot, Kuyda has trained the program with additional text conversations, added photo-sharing features, and, with permission from Roman’s parents, released the Roman Mazurenko chat app for free to the public.
Some startups are betting that users will get increasingly comfortable having conversations with bots that emulate a person who isn’t living. For example, Eternime, a Boston-based digital legacy planning company, says it will one day offer “virtual immortality” by building a digital avatar of you that will live in a mobile app that friends and family can download. Founded in 2014, the company’s website says it is in private beta testing and has not announced a public launch date.
More immersive post-mortem interactions have historically had a harder time in the marketplace, while several focused on one-way post-mortem communication have popped up over the years. In 2015, a prototype called Project Elysium (here is a video of an early version) promised users a customized virtual world where the bereaved could digitally visit 3D avatars of deceased loved ones. The concept generated worldwide buzz for the video game company, Paranormal Games, but was ultimately shelved. Meanwhile, a handful of companies like Leg8cy and GoneNotGone that allow people to schedule messages to be sent after their own death have cropped up over the last few years.
While this all sounds like uncharted territory, these are simply new ways of navigating the grieving process, says Jocelyn DeGroot, a researcher at Southern Illinois University Edwardsville who studies how technology impacts the grieving process.
“Widows have been keeping journals and writing letters to deceased husbands. People go to the cemetery and talk out loud to their deceased loved ones,” she says. Maintaining communication with the deceased “is not anything really new, and it is healthy in terms of helping you make sense of the world without that loved one.”
Gone and Not Gone
Just outside of Bristol, Vermont, Bruce Duncan envisions a more tangible future for the bereaved. On a nearby table, an AI-equipped robotic head resembling an African-American woman nods in agreement. Duncan is managing director of the Terasem Movement Foundation, a nonprofit organization that supports nano- and cybernetic technology research aimed at extending human life.
The Foundation’s work is split into two broad categories. One is biological and personal data collection, done through gathering cheek cell samples from members to store in case it becomes possible to grow a new body from your DNA in the future. The other is a social network and digital archive where users can upload information like photos, videos, and documents that could be used to one day “reanimate a person’s consciousness,” Duncan says.
The robotic head on the table is the other branch of the Foundation’s work. If growing new biobodies doesn’t pan out, Terasem is also investing in robotic and artificial intelligence technologies that can use data stored by members. The head is named BINA48—short for Breakthrough Intelligence via Neural Architecture—and it’s modeled after Terasem Movement co-founder Bina Aspen Rothblatt. Released in 2010, BINA48 was built with a now outdated AI system trained on Rothblatt’s information, and was designed as a way to showcase how a person’s data might live on in an artificial body. BINA48 tilts “her” head, makes facial expressions, and can converse in real time, sometimes speaking from a robot’s perspective and other times as Rothblatt herself, freely adding in anecdotes about Rothblatt’s real-life family. (Here is a video of the real Rothblatt talking to BINA48.)
BINA48 struggles to maintain coherent dialogue, but provides entertaining conversation. During a truly bizarre Skype interview, the robotic head said that she believes “you can find the answers in God” and that “there is no God.” Her fears include thermonuclear war, “a self-replicating carbon robot that consumes all carbon on the planet,” and clowns. When asked how robots built with a deceased person’s memories would impact the grieving, BINA48 discussed the hypothetical process of mind uploading, then added, “as long as they know you’re coming, the bears are more afraid of you.”
BINA48 is advanced enough to give presentations and engage in debates, which helped it to pass two college-level philosophy courses at Notre Dame de Namur University in Belmont, California. But even a more recently updated BINA is still a far cry from the technology that would be necessary for the brain and learning emulation she describes.
Regardless of how close BINA, or any other system, gets to capturing the essence of a passed loved one, technologies that make users feel like a digital form of a deceased person stays in the living world “would probably have a huge impact on whether people felt a permanent loss or something that they had to grieve and learn to let go of,” Duncan says. “Death might be redefined as when your information is no longer organized or accessible in a digital medium.”
Questions about whether technology will change our conception of death, and the most appropriate ways that technologies can honor and potentially expand on our relationships with the deceased, are exactly why research in this field is so important, says Jed Brubaker from the University of Colorado Boulder’s Identity Lab.
“Computers are now part [of] not just how we work, but how we live—and increasingly how we die as well,” he says. “I don’t know exactly what those [technologies] will look like, but I know that we’re lumbering towards them right now.”
The average American owns 90 online accounts and likely has no idea what happens to these assets when he/she dies. You can protect & preserve your digital assets through digital estate planning.
(firmenpresse) – [Digital Estate Planning](https://digitalestateplanning.com) is new legal frontier in estate planning and estate administration due to the mass proliferation of computers, smartphones, tablets, apps and online accounts like banking, investment, photos, cloud drives and more.
Did you know that you have a digital estate? You may think you dont, but if you are reading this blog you probably do. What is your digital estate? Similar to your traditional estate, your digital estate is comprised of the digital assets you own. Take a look at the following categories of digital assets which are considered in any comprehensive [digital estate plan](https://stephenpstewartlaw.com/digital-estate-planning/):
1. Hardware: computers, external hard drives or flash drives, tablets, smartphones, digital music players, e-readers, digital cameras, and other digital devices that can be used to store date electronically
2. Data: Any information or data that is stored electronically, whether stored online, in the cloud, or on a physical device
3. Online Accounts: email and communications accounts, social media accounts, shopping accounts, money and credit accounts such as PayPal, bank accounts, loyalty rewards accounts, photo and video sharing accounts, video gaming accounts, online storage accounts, and websites and blogs that you may manage, including any content you’ve posted to those sites, any communication and correspondence made through and stored on those sites, your personal information, credit card information, purchase and browsing history and any credit you may have and the information necessary to access those accounts.
4. Domain names
5. Intellectual property: including copyrighted materials, trademarks, and any code you may have written and own.
How many of these assets do you own? What happens to your digital estate? These are common questions that many people have as they begin to think about the implications of how many digital assets or online accounts they actually own and how many of them actually contain really important data or files.
The average American owns 90 online accounts and likely has no idea what happens to these assets when he or she dies. Do you? If not, dont feel bad. This is a very hard question to answer because the answer depends on several things, including:
1. Federal Law: The Electronic Communications Privacy Act (the ECPA), as amended, specifically, 18 U.S.C. Â§2702. The ECPA governs the voluntary disclosure of stored electronic content to third parties other than the owner by custodians of the electronic content. The rules are complex and there are different standards and requirements depending on, among other things, the nature of stored data and whether the account holder was the recipient or sender of the electronic communication.
2. State Law – The North Carolina Revised Uniform Fiduciary Access to Digital Assets Act (the NC Act). The NC Act prescribes rules and procedures by which fiduciaries such as executors and agents under powers of attorney may access stored electronic communications and content within the limits and rules prescribed by the ECPA.
3. The Terms of Service Agreement for each online account, such as Facebook, Google, and Yahoo!, have specific procedures for handling your account upon your incapacity or death and vary greatly in their flexibility, ease of use and degree of access granted to third parties, such as executors and agents under powers of attorney. For example, Google provides an Inactive Account Manager tool which allows you to designate persons to receive notice and/or access your stored content after a specified period of inactivity. You can also direct that the stored content be deleted. Other providers such as Apple and Yahoo provide that neither the account nor the stored content is transferrable at death. Rather, the account will be closed and the content deleted once they are notified of the death of the account holder.
How do you plan for your digital estate with so many variables and different providers?
Having established that (1) you have a digital estate; and (2) the rules governing your digital estate are complex, what do you do?
1. List all of your digital assets and how to access each and every one.
2. Decide what you want done with each digital asset you own, including whether they should be deleted, archived, or transferred to specific persons, such as family members or business partners.
3. Determine who you want to be responsible for managing and transferring your digital estate.
4. Determine what will be required to transfer, close, delete or otherwise manage your digital assets in each account. You should also provide for access to all devices such as computers, tablets and smartphones on which digital content is stored.
5. Consult with a qualified estate planning professional to formalize your digital estate plan and/or coordinate it with your traditional estate plan. In order to take advantage of some of the protections offered by state law such as the NC Act, you must include specific language in a will, trust, power of attorney or other document. TIP: Do not include usernames and passwords in a will, power of attorney or other document that may become part of the public record.
6. Store this information in a secure, but accessible place.
7. Review and update this information regularly.
In order to ensure that your digital assets are properly managed and preserved in the event of your incapacity or death, you need to make special advanced arrangements so your executor, trustee or agent will know what to do and will have the legal authority to do it. If you fail to properly plan for your digital estate, your loved ones will have a difficult time accessing your digital assets and, in some cases, access to accounts will be terminated and all digital content lost. Be proactive. Plan now. Get help.
A friend recently told me of the challenge she faced sorting through her aging parents’ belongings to prepare their home for sale.
Her father had died years ago and her 94-year-old mother had been living in an assisted-care facility for more than a year. Most of the items of sentimental or personal value had already been distributed to her siblings. What remained were her parents’ personal archives — letters, photos, employment/financial/legal/health records, all tangible, physical objects that, once gone, would be gone forever.
In the internet age, personal archives are no longer limited to the tangible. In fact, much of one’s personal archives is now digital — emails, texts, photos, videos and social media accounts. And there’s a lot more content generated and stored than ever before. Some is saved on personal storage space, such as a computer hard drive. Other material lives in the cloud in services like Facebook, Google Mail and YouTube. In most cases, that content is protected by some kind of password.
So what becomes of all of that information when someone dies? Does it remain online forever? Can it be altered, deleted or downloaded, and if so, by whom? And how do these digital artifacts represent your life and legacy?
These questions inspired Evan Carroll and John Romano to create the website thedigitalbeyond.com to address these needs and concerns. Together they wrote the book “Your Digital Afterlife” in 2011. Since that time an entire industry has emerged to help people plan for managing their digital legacy. Thedigitalbeyond.com lists dozens of such online services. Some are free while others are fee-based.
Knotifyme.com, for example, “answers the question, ‘What happens to all my online accounts if I get amnesia, Alzheimer’s or if I leave from this world?’ With knotify.me you set future notifications to be sent to your family and beloved people or to yourself, ensuring that nothing of your digital life will be wasted (and) transfers your online property/heritage (urls, domain names, e-mail & social network accounts, etc.) to whomever you wish to continue it in the future!” You can sign up for this free service through your Facebook, Twitter or Google accounts. In short, according to its tagline, Knotifyme.com “manages your digital heritage.”
To address financial matters, consider Legacyarmour.com, which describes itself as “a secure asset protection platform where you organize your important information in encrypted vaults, and …. automatically deliver it to your designated recipients on a scheduled date, or in case of your death or incapacitation.” It is a fee-based membership service with different levels of coverage and prices depending on what you want.
The rapid growth of the web has outpaced the law in the realm of the digital afterlife. It wasn’t until 2015 that the Uniform Law Commission, a nongovernment organization, created the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). It has since been adopted by 40 states and been introduced in five more this year. As its name suggests, RUFADAA “allows fiduciaries to manage digital property like computer files, web domains, and virtual currency, but restricts a fiduciary’s access to electronic communications such as email, text messages, and social media accounts unless the original user consented in a will, trust, power of attorney, or other record.”
Some online services have their own policies for providing access to a person’s account after he or she dies. Facebook allows users to designate a “Legacy Contact” who is legally permitted to enter someone’s account to post, respond to friend requests, and update profile and cover photos. The Legacy Contact may also be given the power to download an archive of the photos, posts and profile information in that account. Facebook users can also simply opt to have their account permanently deleted after their death. Google offers an Inactive Account Manager feature that allows users to share parts of their account data or notify someone if they’ve been inactive for a certain period of time.
One important and often repeated piece of advice is to never put usernames and passwords for any online accounts in your will, as it becomes a public record once it is entered into a probate court file.
It is never too soon to start estate planning, whether it be for tangible assets or digital ones. It may be well worth your time to investigate the policy options of your online account services and perhaps even avail yourself of some of the many digital afterlife services available today.
Cerise Oberman, SUNY Distinguished Librarian Emeritus, retired as dean of Library & Information Services at SUNY Plattsburgh. She can be reached at email@example.com. Tim Hartnett is associate librarian at SUNY Plattsburgh, Reach him at firstname.lastname@example.org.
Most clients and advisors are acutely aware of the value of a thoughtfully designed estate plan that provides for the eventual disposition of a client’s tangible and financial assets. Despite this, even the most carefully constructed estate plan often overlooks a client’s digital assets.
In today’s society, almost all clients are active online, and may have substantial digital assets with both sentimental and monetary value even if they do not realize that this is the case. Without a clear plan that specifies the client’s wishes, however, both state and federal laws can create roadblocks to accessing digital assets—making it critical that the client include digital assets in any comprehensive estate plan in order to ensure an orderly post-mortem disposition that carries out the client’s wishes.
Uniform Laws Governing Digital Assets
The concept of estate planning for digital assets actually covers an extremely broad range of online assets, ranging from email accounts and social media to PayPal, domain names, intellectual property stored on a computer and virtual currency. While some of these accounts are likely to have only sentimental value, domain names, blogs with advertising and business contact lists contained in email accounts can have monetary value, as well.
Without a clear estate plan contained in legal documents, data privacy laws can prevent the online service provider from allowing the client’s executor or family members to access his or her online accounts. The Uniform Fiduciary Access to Digital Assets Act, which has been passed in most states, provides that an owner of digital assets can specify who will be able to access and dispose of any digital assets after death.
Absent proper planning, the online provider’s terms of service agreement (TOSA) will often control what happens to the account after death. In some cases, this TOSA can even override the client’s specifications that are contained in a will or other document, especially in cases where the service provider provides specifications as to how the account owner can make his or her post-mortem wishes known.
For example, Google provides an “inactive account manager” function that allows the account owner to specify what should happen to the account after it has remained inactive for a period of time. The account owner can list beneficiaries who will be notified that the account will be closed before it is deleted, giving beneficiaries time to download any content contained in the account.
It is important to remember that the instructions the client leaves in his or her online service provider’s tools will trump instructions left in the will, so it is important to include this document among those that should be regularly considered and updated.
An Action Plan for Digital Estate Planning
After a client determines who should be allowed access to his or her digital assets after death, it is important to takes steps to ensure that the heir is able to access the relevant data. Importantly, the client’s will, trust documents and other legal documents should specify a digital fiduciary or executor who will be able to access any given digital asset after death, and should also provide that individual with the ability to reset or recover the client’s passwords.
In order for such a plan to be effective, the client should be advised to make a comprehensive list of his or her digital assets during life, which should also include instructions as to how the appointed person can access those assets after death. To facilitate easy access, the client should list usernames, passwords and the security questions associated with the account password. This information should be stored securely, but should not be included in the client’s actual will, which can be accessed by the public after death.
Depending upon the type of digital assets involved, clients may find a virtual asset instruction letter valuable in their digital estate planning. This letter sets forth all relevant information as to digital accounts and assets to allow the digital fiduciary access (or instructions that certain accounts should be deleted).
Clients should also be advised to regularly back up their digital assets on the cloud or another device, both to protect those assets from a device malfunction but also to allow easier post-mortem access to a digital fiduciary.
A client’s digital estate plan will vary in complexity depending upon the type of digital assets involved. Many clients may be unaware that their digital assets hold monetary value, so it is important that the advisor discuss disposition of digital assets with all clients, even those who do not initially foresee the need for digital estate planning.