How do large digital companies deal with subscriptions and/or accounts post death? What happens to the public’s copious amount of photos, videos, messages and documents on social media?
In as little as two years (from 2012 to 2014), the public have produced more data than in all of human civilisation before that – and is still increasing at an exponential rate.
While digital assets can take many forms such as online photos, subscriptions, music libraries, social network profiles or email accounts – the majority of us do not have physical records of them.
It is therefore not clear what people’s digital presences will look like in years to come but we can be certain that an ever-increasing number of people will be creating and accumulating more and more data until they pass away.
So, how do companies deal with such assets after death and how do they help and/or support digital estate planning?
Unfortunately, as an example, the world’s largest online retailer, Amazon, do not make it easy to find this out. However, a company called ‘Everplans’ provides instructions, advice and assistance on how to close an Amazon account when someone dies for their basic account and Amazon Prime accounts.
Everplans is the web’s leading resource for planning and organising your life, it enables you to create, store and share important documents that loved ones might need in the future in the event of death – which includes all assets in digital form. An Everplans’ Digital Estate Plan can be created in five easy steps and a digital executor appointed who carries out loved ones’ wishes for digital assets.
However, Social media do offer support and advice when it comes to dealing with accounts post death. Facebook instituted a policy a few years ago regarding how to handle profiles of deceased individuals – where family members can choose one of two options, either close it or turn the account into a memorial profile.
More and more online social networks are adopting rules to handle the situation such as Twitter, LinkedIn, Pinterest and Instagram whereby proof of death, ID and possibly form filling is required to deactivate the account or ‘memorialise’ the accounts of deceased users.
While companies are showing signs of helping and advising on how to deal with accounts after someone dies, they are still behind the times. Currently, the majority of people have to adhere to “Terms and Conditions” of each digital service offered. An example of this is Apple’s Itunes where currently everything bought expires upon death – which shows company legislation needs to catch up to reality!
As a private client professional, have you ever dealt with digital assets in estate planning?
A GHOST tour in Edinburgh was where I first discovered the morbid truth about why Victorian headstones often had bells attached.
Buried by mistake? Ring urgently for service.
We’ve come a long way since then, and thanks to modern medicine can be certain when someone’s been ‘called home’ before doing the needful.
If you’re squirming a bit in your seat at the thought, it’s natural. The D word is nobody’s favourite and talking about it is the biggest slap in the face to any healthy dose of self-denial about what’s at the ‘end of the line’.
Anyway, let’s say you are doing a bit of planning and you’ve sorted out what to wear, who to invite and all that, then as a child of the Digital Age you must also put on your ‘to do’ list who can access your social media accounts and other digital assets when you’re gone.
Apparently it’s a bit of a grey area in legal circles and they want to do something about it.
At the helm is the NSW Law Reform Commission which his reviewing laws affecting life beyond your digital death.
Initially they’ve called for submissions from the legal profession and later in the year the public can throw in their two cents worth (and for those born after 1992, when the two-cent coin was demonetised, it means your opinion).
When making the review public, Attorney General Mark Speakman said: “In today’s hyper-connected world, an unprecedented amount of work and socialising occurs online, yet few of us consider what happens to our digital assets once we’re gone or are no longer able to make decisions.
“This is leading to confusion and complexity as family, friends and lawyers are left to untangle digital asset ownership issues, applying laws that were developed long before the arrival of email, blogs, social media and cryptocurrency.”
What the LRC is more worried about is who can access your digital stuff, but although it’s inappropriate to laugh at a time like this, this quote from Speakman was just a little bit ironic.
He said: “When a loved one passes away, bureaucratic hurdles and legal uncertainty are the last thing families and friends feel like confronting, so we need clear and fair laws to deal with these 21st Century problems.”
Bureaucratic hurdles and legal uncertainty are what families and friends are confronted with when a loved one passes away.
I suppose we’ve really only got ourselves to blame, being the most connected of all countries in the world. So, the review will focus on NSW, Commonwealth and international laws, including those relating to intellectual property, privacy, contract, crime, estate administration, wills, succession and assisted-decision making.
The LRC will scrutinise (their words, sounds expensive) the policies and terms of service agreements of social media companies and other digital service providers.
Facebook is at a bit of an advantage here already, having had lots of experience in this area.
On a more serious note, social media companies do handle sites of the deceased differently, from memorialising them to simply shutting them down.
Having a say in what you’d like to happen, particularly given there can be a story of a whole life recorded there, is important.
If you haven’t made arrangements for anyone to take control of your sites or access private emails, the LRC is considering whether additional privacy protections are needed.
The issue of ownership of digital assets upon death cuts across many different areas of law which is why it’s not clear and fair but complicated.
Here I was thinking I’d just leave a list of my 70,000 passwords for someone else to troll through my social media, blogs and websites if they could actually be bothered.
But really, who could forgo the opportunity to plan ahead by scheduling posts and memes to appear long after I’m gone, saying things like ‘I can see what you’re doing’ or ‘There is no Planet-B’.
Visit www.lawreform.justice.nsw.gov.au to read more.
The One Big Thing Your Estate Plan Is Missing
You may have great estate planning documents. You may have discussed them with your family. You may have even inventoried your digital assets and feel that your job is done. But your estate plan may still be missing one BIG thing: a “letter of instruction.”
Do your representatives know what to do?
Managing an estate is a tough job. If you died today, would your Successor Trustee or other representatives even know where to start? Where is the key to your safe-deposit box? Where are your car titles? What is the combination to the floor safe? Where is the abstract of title to your home? What are the passwords to your computer and other online accounts?
A letter of instruction is meant to help guide your representatives through administering your estate after your death. Imagine that you could stand over the shoulders of your spouse or children or other loved ones and tell them exactly what needs to be done. Very likely, these individuals are going through a tremendous amount of stress and grieving. But you can ease their burden by leaving step-by-step instructions to help them through the process. That is the purpose of a letter of instruction.
What should my letter contain?
There is no right or wrong way to prepare a letter of instruction. A few ideas were mentioned above. Include a list of where your assets are located, how to access your accounts, where you keep important title documents, etc. These pieces of information are essential to managing any estate.
However, your letter can provide even greater detail. What subscriptions (cable, newspaper, lawn service) need to be canceled? What are the names and phone numbers of your advisers (financial, medical, spiritual, insurance) that should be contacted after your death? How can your representatives contact your family to let them know of your death? Where would you like your funeral held? Do you have a preferred program for your funeral? Do you already have an obituary prepared?
Your letter can also include instructions for distributing small items of personal property that have low market value — but high sentimental value — to your family. You may wish to distribute these items to certain beneficiaries rather than having them sold with your other property as part of an estate sale. Letting your representatives know about your wishes could keep these items from being lost forever. Remember, however, that your letter of instruction can only voice a preference for how you want untitled personal property distributed. All gifts of titled property must be made through proper legal documents.
Talk to an attorney about a letter of instruction.
Estate planning involves more than just legal papers. It is also about more than just your own well-being; it is about providing for your loved ones after you are gone. To discuss how you can take care of your loved ones after your death, contact the Oklahoma City estate planning attorneys at Postic & Bates for a free, no-obligation consultation appointment.
As a bonus, click below to download our FREE Estate Planning Guide for access to over 70 pages of information about estate planning and probate:
[As with all our posts, the contents of this article do not constitute legal advice and are subject to our site-wide disclaimer.]
Digital property is increasingly becoming a more important part of estate planning. Individuals should consider their digital property, in addition to their tangible assets, when finalizing and reviewing their estate plans.
A person’s digital property and electronic communications are referred to as “digital assets” and the companies who store those assets on their servers (Google, Facebook, Apple, etc.) are referred to as “custodians.” Digital assets are typically governed by terms of a service agreement — not by property law. These service agreements are unhelpful when a user passes away or becomes incapacitated. As the number of digital assets we have increases daily, so does this growing issue. To address this, many states have adopted the Revised Uniform Fiduciary Access to Digital Assets Act (UFADAA), which allows a fiduciary the legal authority to manage another’s property and specifically allows Internet users the power to plan for the management and disposition of their digital assets.
Digital assets should be included in your normal estate planning and wealth transfer conversations with your estate planning attorney and family members. Your estate planning attorney may create an amendment to your existing will, trust, or power of attorney to give the designated agent the authority to direct or dispose of your digital assets. This amendment may take the form of a Virtual Asset Instruction Letter, which allows you to list accounts, instructions for those accounts, and the person(s) designated to access them.
Digital assets, while not always tangible, can be very valuable. For example, airline miles and hotel points have obvious monetary value, while photos, emails, and other creative works have sentimental value. As a result, it is important for individuals to have a plan for photos, email and social media accounts, financial accounts, and online memorabilia and documents.
Please contact us to request additional resources on creating a digital estate.
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Digital Legacy: What will you pass along when you pass away?
No matter how you choose to spend your time on Earth, you will inherently leave behind a legacy. This includes what you’ve created that you will pass along (wealth, assets, knowledge) and what you stood for or represented while you were alive (strong work ethic, humility, etc…). Leaving some sort of legacy to friends and family is partly what makes life worth living.
However, how do the new digital environments which we spend a large amount of our time fit into our legacies? How will one’s Digital Legacy live on?
Leaving a Digital Legacy
Back in October of 2016, I published an article on LinkedIn that spurred someone to comment some hateful things – cursing me out and telling me to stop writing.
I’ve got thick skin so it didn’t bother me. But, it was so uncharacteristic of an executive on LinkedIn (the world’s professional platform) that it got me thinking.
Every action on public platforms contributes to our Digital Legacy. These actions are recorded and archived.
Future kids and grandkids are going to be tech-savvy at a level we may not comprehend right now. A regular Tuesday night might be scraping their grandpa’s Twitter account for all his public Tweets – seeing how he spent his years online.
Tell me, how will that grandparent explain to his grandkid the time he called someone on YouTube a “fat bucket of fried chicken”?
Those precious, “gather round” story-time moments that grandchildren share with their grandparents are soon going to include the actions we take in digital environments.
My grandpa was a fairly secretive man. The few moments that someone got him to open up about his past, we all got quiet and listened because we knew there was a great story coming.
Today, digital environments record many of these great stories for us. Vacations, activities, and everyday pictures are logged on Instagram. Visual conversations are logged on Snapchat. Raw emotions are logged on Twitter rants.
The beauty of a Digital Legacy is that it’s extremely transparent. And also acts as a time capsule.
From here on out, digital environments will provide a lot of clarity to the identity of a person’s life. But, there’s more to a Digital Legacy than stories.
Inheriting a Digital Estate
Over a lifetime, we accumulate “things” and “stuff”. Some of it valuable, some useless, and some priceless. Increasingly, more of these accumulated assets are becoming digital.
You might have dozens of email, social media, and other accounts, a few digital content subscriptions (Netflix, Apple Music, etc.), and hundreds of personal media files (pictures and videos).
These are assets you may want to pass along to family or friends.
For me, I’ve spent tens of thousands of dollars building a massive archive of digital music, ebooks, and online movies. No different than a box of records, a shelf of books, and a cabinet of DVDs – I want my Digital Estate to be passed along and enjoyed by others once I pass away.
Unfortunately, there aren’t simple ways of doing so. One proposed law, the Fiduciary Access to Digital Assets Act (FADA) aims to make digital asset transfer legal. But, it’s far from being passed.
Additionally, considering a Last Will & Testament eventually becomes publicly available, the last thing you want to do is bequeath your passwords over this public document.
Some of the larger online entities (Google, Facebook, LinkedIn, Instagram) provide options for people to memorialize the accounts of the deceased. But, it’s somewhat of an arduous process and mostly prevents others from taking over the account.
Also, this doesn’t account for the thousands or millions of other accounts out there that don’t have these options.
Nonetheless, we can agree that our loved ones’ digital assets shouldn’t pass away with them. Preserving social media accounts and other services is a way of preserving great memories.
As we accumulate more digital assets, the need for Digital Estate management will grow. We can expect to see services pop up in the coming decade that makes the process of Digital Inheritance easier.
The Collective Legacy
One of the highest behavioral motivators is wanting to be remembered, to make a lasting accomplishment in the name of society. It’s partially what fuels innovation and economy.
But, it is far from foolproof. And one of the greatest creatives of our time, Kanye West, brings up some very interesting questions:
“What makes us be so selfish and prideful… what keeps us from wanting to help the next man? What makes us be so focused on a personal legacy as opposed to the entire legacy of a race?”
The pride we take in wanting a legacy for our name often forces us to forget about the person standing next to us.
I’m a firm believer that dedicating your time to the goals of others pays huge returns for your own missions… As long as you aren’t helping others to help yourself.
Balance the time you invest in building your legacy and the collective legacy of our race because they are equally important to leading a fulfilling life.