“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
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.
A couple of recent cases suggest that we could be on the cusp of intestacy and privacy laws stepping in to help assert control over your digital footprint after death, writes Amy Bradbury
In the UK there is no specific legal framework for dealing with digital assets on death and, given we usually don’t own social media profiles (all we have is a licence to use the platform in question), it tends to be the website’s own terms which govern the position.
Some sites have policies in place for when a user dies. Twitter will work with a person authorised to act on behalf of the Estate or with a verified immediate family member of the deceased to have an account deactivated, and both Facebook and Instagram will ‘memorialise’ accounts. Facebook also allows a user to either appoint a ‘legacy contact’ to look after a memorialised account or have the account permanently deleted. However, it remains extremely difficult to get permission to log in to the deceased’s account, see messages or remove or change posts.
This was highlighted by a recent German case. It has been widely reported that Germany’s highest court has ruled that heirs in Germany have the right to access the Facebook accounts of their deceased relatives as a social media contract can be inherited in the same way as documents such as letters. The decision comes after a long battle by the parents of a 15 year old girl to access her profile, including posts and private messages, to try to find clues about whether her death was an accident or suicide. Despite having the account password, Facebook had refused access citing data protection laws and the privacy of third parties. Hailed as a landmark decision, the judgment purportedly sets aside these concerns and takes a step towards putting digital assets on the same footing as physical assets in Germany.
Separately, in the case of Sabados v Facebook Ireland Ltd the English Court required Facebook to hand over certain information to a bereaved partner. Ms Sabados brought an application against Facebook following the deletion of her deceased’s partner’s account at the request of an unknown individual. The judge ruled that Facebook had to provide details of who made the deletion request which, at the time, was unbeknown to the deceased’s family and friends. The application was brought prior to proceedings. Although currently somewhat unclear, it appears Ms Sabados may wish to assert claims relating to misuse of private information at a later date.
In this vein, a recent claim against The Sun has highlighted that publishers may now more readily accept that privacy rights subsist after death. An invasion of privacy claim was issued following the publication of topless photos of a woman in a revenge porn case. The case was settled without admission of liability but the recognition that a privacy claim can be brought after death is significant.
These cases highlight some of the knotty issues and the need for the Courts to step in. At a legislative and regulatory level, little attention has been given to what happens to data and privacy rights on death. Indeed, whilst the introduction of the General Data Protection Regulation (GDPR) in May has signified the increased importance of protecting the data of the living, it does not apply to the deceased.
There has been call for change. For example, the Information Law and Policy Centre, a research centre within the Institute for Advanced Legal Studies at the University of London has specifically identified the issue in its response to the House of Lords Select Committee on Communications’ call for evidence in its consultation on ‘The Internet: To Regulate or Not to Regulate’.
In the meantime, individuals would be wise to take certain practical steps to protect their digital legacy on death by: creating an inventory of digital assets; keeping passwords in a password manager or digital inheritance account; appointing someone to deal with digital assets on death and ensuring that social media account settings have been amended to in accordance with an individual’s wishes where options for memorialisation are available.