Immediate need to improve the management of accumulated digital records, says Cabinet Office report Public bodies face “significant risks” from the legacy digital information they have accumulated but are often unable to obtain the benefits, according to a Cabinet Office report on the painfully drawn-out transition to a digital […]
CryptoTestament’s new Kickstarter campaign provides tools to safeguard important financial and digital information This press release was orginally distributed by SBWire Montreal, QC — ( SBWIRE ) — 01/19/2017 — CryptoTestament, developers of new encrypted technology tools to secure postmortem digital legacies — including credentials and passwords, Bitcoin accounts […]
One reality of modern life is our increasing reliance on digital information and services. It’s difficult to take and then order prints of photographs, accumulate travel rewards, book travel, sort through financial records, communicate with distant friends, and even keep abreast of breaking news without a computer and e-mail access. Most creditors and banks encourage customers to “go green” and receive bills and statements electronically. Medical records and histories are increasingly available to patients and caregivers via online systems. Many people use online rental sites to rent their under- or unused vacation property to offset carrying costs. Unfinished novels and other valuable content produced by authors and artists will likely be stored on a remote service in the cloud, instead of locally on a hard drive.
There are many crypto and digital currencies, such as Bitcoin. Domain names continue to garner seven- and eight-figure sales prices: the $35.6 million paid for “Insurance.com” in 2010 is an extreme example. Virtual gaming is enormously popular: one gamer named Jon Jacobs built, ran and ultimately sold $635,000 in digital assets (including a casino called “Club Neverdie” built on an asteroid) that only existed virtually in Entropia Universe, an online gaming platform.
Despite the increasing prevalence of digital assets in our lives, few online account custodians offer customers online tools allowing them to provide for access to or disposition of any property held in these accounts, or even the records associated with the accounts. Unfortunately, the law has not kept pace with modern life and technologies. Digital assets are treated the same as non-digital ones by the majority of state probate statutes. This has proven unworkable, as the custodians of many online accounts have refused to recognize fiduciaries’ authority over digital assets.
In fairness, electronic communications and accounts are unlike traditional letters and accounts in several ways. As compared to paper letters, lost and even deleted e-mails might be easily located and retrieved from an e mail service provider. A decedent or incapable person might have opened an online account (to access embarrassing content, or a dating service such as Ashley Madison, for example) with the expectation that it would remain private and undiscoverable by anyone, including a fiduciary. Without evidence of the account holder’s intent, it is impossible to know for certain whether the user intended the account to be accessible and not private.
If you become incapable or die, your fiduciaries will become responsible for handling your finances. They will inventory your assets, and they may need to manage or close your financial accounts or business, pay your debts, taxes, and expenses, and distribute your assets to your beneficiaries. In today’s digital world, your fiduciaries need access to your digital assets to do their jobs and to monitor and close your online accounts, protecting them from cyber thieves. (In 2014, alone, $16 billion was stolen from 12.7 million identity fraud victims in the United States!)
In the past, fiduciaries responsible for managing assets of and for others could easily marshal, collect and manage the assets. Often, the biggest nuisance was convincing a recalcitrant financial institution to honor a power of attorney, and personal representatives and conservators, armed with court decrees, encountered few problems. That has changed, because digital assets can be encrypted, secured by passwords that die with you, or protected by federal and state data privacy and anti-hacking laws.
Even if the fiduciary can find a password, the account provider’s terms-of-service agreement (TOSA) might forbid account access by anyone except the account holder—implicitly barring a fiduciary from access. Online TOSAs are frequently silent as to postmortem options, and often simply prohibit postmortem transfer. See the compendium of a myriad of TOSA provisions, maintained at https://www.mylennium.com/domaininfo.
To ensure your beneficiaries and fiduciaries can access your digital assets, either to preserve and distribute them, or to destroy them for you, your Power of Attorney and estate planning documents must indicate what you wish to happen to your digital assets. To that end, your estate planning attorney will ask you about your digital and online accounts and will include appropriate provisions in your will, trust and power of attorney documents. Without your express consent in your documents, your family and fiduciaries may be unable to access your accounts, even if you have used a password manager or shared your access information with them. If you use encryption to secure your data, wherever it is stored, you must assume that your fiduciary will be unable to break it, and plan accordingly.
“I leave my MP3 collection, Apps library, e-books and Facebook content to…”
When we think about our assets, we usually think about our bank accounts, reals property, retirement accounts, and personal property and so on. But in this age of digital information, most people have sizable portfolio of digital assets. These can include our MP3 collections, iTunes and Apps libraries, e-books, photos as well as and other digital media. It may also include things like our Facebook, Twitter, and Instagram posts and online blogs. What happens to these things after we die? Who gets to access our emails and Twitter accounts? Can we leave our e-book and app collections to our family member or friend? These are not issues that we can really look to history and precedence for guidance. The idea of digital assets did not even exist until the last few years!
Most states and the federal government are still struggling with this issue. In July of this year, the Uniform Law Commission approved the draft of the Uniform Fiduciary Access to Digital Assets Act. The Uniform Act is not a law, and it is up to states to decide if they wish to adopt the Uniform Act or their own version of it. The Uniform Act greatly increases access to a deceased person’s digital assets, including emails, unless there are contrary instructions in the deceased person’s will. Moreover the Uniform law supersedes any provisions contained the terms of service or other end-user agreement.
Recently, Delaware became the first state to pass legislation related to how digital assets are dealt with after a person’s death. The Delaware Fiduciary Access to Digital Assets and Digital Accounts Act is modeled after the Uniform Act. It allows personal representatives of the estate of a deceased person the same access to the accounts and digital assets of the deceased account holder as the account holder had him/herself. While this statute may raise many privacy concerns, it does greatly increase access to the digital assets of a deceased person and increases ease of estate administration.
In Pennsylvania, a bill was introduced in 2012 that would allow the personal representative of an estate the power to “take control of, conduct, continue or terminate” a deceased person’s social media account. This act was never passed and currently there is no guidance in the Pennsylvania legislature on how a person’s digital assets can be effectively disposed of after their death.
In the absence of legislative guidance, user agreements will determine who may access to digital assets after the death of an account holder. This may prevent the family members and loved ones from being able to access valuable information held by the deceased. Moreover, there may also be confusion if a person will or other testamentary document leaves instructions that are contrary or in conflict with the end-user agreement with the service provider. This, in the absence of further guidance is received from lawmakers, it is very important to have estate plans that allow the personal representative of the estate to have fullest flexibility to communicate with the service providers and have access to your digital assets in the event of death or incapacity.
It’s a fact of life that we’re all going to die at some point. While it’s not something you probably want to think about, you can make things a lot easier on yourself (and your family) if you get everything in order now. Here’s what you need to do.
Your inevitable demise is hopefully not on your mind too often, but it’s still something you should think about long enough to get everything in order. Doing so ensures that everything in your life is organized so others can see what you want to happen after you’re gone, what you own, and how to handle a variety of situations.
If this sounds daunting, don’t worry too much: being unmarried, without children, and without a useful asset to speak of, I was able to get everything in order in about two hours (I still had a lawyer friend double-check everything to ensure I wasn’t accidentally giving my dog medical power of attorney). The more you own the longer it’ll take, but it’s not nearly as time-consuming as it looks because most of this stuff you probably already have ready to go.
Note: You can do a lot of this stuff on your own, but it’s a good idea to speak with a lawyer about your will, assets, and general estate planning. This guide is meant more to get you acquainted with terms, provide DIY options when applicable, and help you collect together what you need.
Decide What Happens After You Die
Planning for your death is actually two things: what happens after you die, and what happens if you’re ill and unable to handle decisions yourself. Let’s start with taking care of what happens after you die, starting with your last will and testament.
Write Your Last Will and Testament
Your last will and testament is a document that designates what happens with your property, guardianship of your children, and names the person (executor) who carries out your wishes after you die. If you don’t own a lot of property, a simple will is likely all you need.
It’s possible to draft up a simple will on your own, but it comes with its own set of pros and cons. These include problems with outdated information, specific state related tax issues, and how they handle specific trusts. As USNews notes, online wills are a one-size fits all solution, that can’t always account for the complicated situations of real life. However, if you only need a very basic will SmartLegalForms, LegalZoom, or RocketLawyer all provide a simple template for doing so for between $15 and $80. These laws and requirements change often, and if you don’t do it right you might unintentionally give someone more power over your estate then you want. Most simple wills have just a few sections where you can say what happens to your assets, and designate who gets any property you own.
When you’re drafting up your will, you’ll also name your executor. After you die, this is the person who handles your estate (all of your property), finances, debts, and everything else. It should go without saying this is a person you would trust to handle your estate when you’re alive. Once you die, a probate court will officially give power to your executor to handle your affairs. They do not have control over your estate until after you die.
Finally, to make the will legally binding, you’ll usually need to get signatures from at least two witnesses (who aren’t beneficiaries listed somewhere on the will), and it’s advisable to get it notarized by a notary public. You can usually find a notary public at your bank, and they act something like an official witness for legal forms.
If you have a lot of assets that you want to designate to multiple people, or to make sure your will is legally sound, you should speak with a lawyer about getting a more advanced will written up. Things start getting really tricky when finances are involved, and if you have a lot of assets it’s worth at least consulting with a lawyer (if you need help finding a reputable lawyer here’s our guide). I spoke with lawyer Elizabeth D Mitchell of Ambler & Keenan, LLC about the basics of what you can expect from an estate planning firm:
I usually start people out with a form and have them think about who they would name as their power of attorney. From there, we’d look at their assets and arrange for special circumstances. It’s important to remember that estate planning isn’t just what happens after death, it’s also about what happens if you’re incapacitated… What I always tell people is that it costs more to clean up a financial mess afterwards then it does to plan ahead.
Mitchell also adds that although it takes a little time to get everything in order, most estate planning lawyers offer some type of free consultation before they into your plan. This is because once they set up a plan with you, you’ll be dealing with them for the rest of your life so it’s important to know exactly what you’re getting into. Mitchell also recommends people at least speak with a lawyer about writing up their will even if they don’t own a lot of property because it’s possible a single mistake could mess everything up. As the New York Times points out, the law is different in every state, and something as minor as not declaring the document a will out loud will make it invalid in certain states. A lawyer is also handy to set up trusts so your family gets paid out. According to the Wall Street Journal, trusts are increasingly important:
Rick Law, founder of estate-planning firm Law ElderLaw LLP in Aurora, Ill., says estate planners increasingly recommend revocable trusts in addition to wills, since they are more private and harder to dispute. “Every will is like a compass that points toward the closest courthouse,” he says.
A revocable living trust can be changed anytime during your lifetime. After you transfer ownership of various assets to the trust, you can serve as the trustee on behalf of beneficiaries you designate. Provided you do so, there aren’t any ongoing fees.
That said, if you don’t own that much, or you don’t mind leaving it all to one person, the whole process of writing out your own will takes about 20-30 minutes. Photo by Ken Mayer.
Outline the Funeral or Memorial Service
Obviously this step is optional, but if you want something specific to happen at your funeral or memorial service after you die it’s a good idea to get it in writing, and let your family know your wishes. Doing so gets rid of the headache of planning for your family, and ensures you get what you want. You don’t need to go in and plan everything out, but here are a few things worth considering:
If you want a burial, you need to find a grave plot. You’ll need to contact a local cemetery and purchase a plot if so. If you want a specific cemetery or plot, the earlier you do this step the better.
If you want cremation, you’ll work with a funeral director, so contact a local funeral home and arrange any details with them.
Decide if you want to pre-pay for any arrangements so you don’t have to worry about your family paying for anything while they wait to get access to your money. Since the average funeral is around $6,500, so it might be helpful to pay ahead of time.
At this time, you can also decide if you want anything specific in a memorial service, how you want the wake handled, and everything else. It’s also common to add these details to the will if you want to make sure your wishes are followed. Obviously this is a very personal event, and what you want depends a lot on your religious and social background. It’s a good idea to make your wishes known to family members to take the pressure off them when the time comes.
Designate What Happens If You’re Ill or Incapacitated
Just as important as what happens after you die is what happens if you’re ill, incompetent, or incapacitated. For this you need a living will, a power of attorney, and a medical power of attorney. If it sounds a little scary, don’t worry, it doesn’t take a lot of time and by the end you’ll know that you’ll only get the medical support you want.
Designate a Power of Attorney
A power of attorney is the person who can attend to financial or legal matters if you fall ill or are unable to handle them for yourself. It’s a good idea to choose a power of attorney so that they can attend to your financial and legal issues immediately after you fall ill. The power of attorney expires when you die, and the control of your finances typically shifts to the executor you named in your will. In some cases this is the same person.
The form to designate a power of attorney varies by state, but if you want to do it yourself you can get a document from the same services where you did your will (SmartLegalForms, LegalZoom, or RocketLawyer). If you’re giving one person complete control over everything you can likely manage to fill this out yourself, but if you want to limit what they can do it’s likely best to consult with a lawyer. Photo by Andy on Flickr.
Prepare a Living Will and Designate a Medical Power of Attorney
Every state has different paperwork for your living will, and different guidelines (you can grab paperwork specific to your state here). Essentially, each form allows you to designate what type of medical care you want to receive if you can’t speak for yourself, as well as designate if you want to donate any of your organs to science. Again, you’ll usually need two witnesses when you sign, and it’s wise to get it stamped by a notary. When you’re finished, keep a copy for yourself, and give copies to your physician, a family member, and your healthcare agent (your lawyer will also keep one if you use one). Additionally, if you do not want CPR or ACLS, you want to fill out a Do Not Resuscitate order with your doctor.
Not every medical procedure known to man is covered in the living will, and for those unexpected occurrences you may also want to designate a medical power of attorney (also known as an agent, attorney-in-fact, health care proxy, or health care surrogate depending on where you live). This person can make medical choices for you if they’re not included on your living will, or if you give them the power to override your previous choices if the circumstance warrants it. Additionally, they can also get the right to see your medical records (which is helpful if you choose anyone other than direct family), apply for Medicare on your behalf, and make choices about any medical procedures when you can’t. Again, this differs by state, but you’ll often name a medical power of attorney on your living will. Of course, before you give someone the power of attorney you’ll want to go over what type of medical treatments you want and don’t want, and make sure they agree to follow your wishes.
The living will and health care power of attorney forms are important for everyone to fill out. I did mine in about 10 minutes. With these completed, you’ll have the peace of mind that you’ll get the medical care you want (or don’t want) in just about every circumstance. Again, a lawyer is helpful here if you’re unclear about anything. If you’re not sure what type of treatments you’d like when you’re incapacitated you should speak with your doctor. Photo by Social Innovation Camp.
Organize Your Finances, Life Insurance, Bills, Debts, and Everything Else
While the bulk of your assets are distributed on your will, you still have a lot of financial obligations out in the world. Naming an executor on your will and a power of attorney is just one step. You’ve probably already done this, but it’s also important to get all your finances organized so your heirs can actually find what they need. According to the National Association of Unclaimed Property, around $32.9 billion assets are currently unclaimed because the state took hold of them instead of the family. So, whether you decide to write up your will with an estate planner or not, you still need to get everything in order.
Two of the most important documents are your life insurance policy (especially policies from former employers) and retirement plans (as well as pensions and annuities), because both are easy to overlook. If your heirs don’t know these accounts and policies exist, they can’t claim them and the funds usually go to the state. So, gather up your various policies and keep them together.
If you don’t have a life insurance policy, you might want to get one, and we’ve walked you through what you need before. A life insurance policy isn’t just about covering your salary after you die, it’s about helping your family pay for funeral costs, car loans, credit cards, mortgages, and everything else.
To make the process easier on your family when you pass away, it’s also a good idea to gather together all your debts (especially big ones like your mortgage, car loans, or credit cards) in one place so your heirs can pay your bills for you while they figure everything else out. You likely already do this, but it’s good to keep everything together so they don’t have to search for it. To make the process even easier (and skip over any conflicts with power of attorney), you can add a family member to at least one of your bank accounts so they always have access to some of your funds.
If you have a lot of sources of income, it’s a good idea to meet with a financial advisor to get everything organized. You can find one through The National Association of Personal Financial Advisors. With your financial advisor you can set up beneficiaries for retirement plans, make your accounts accessible, and create spending plans for your surviving family.
Secure Your Digital Life (and Pass the Keys onto Someone You Trust)
The reason this is an important step is not just to give your heirs access to your bank accounts, it’s also so they can shut down services you don’t want around. For example, Facebook can memorialize your page if you want, but if you don’t want that digital record sticking around, you might make a request to your heirs to delete it outright. Likewise, if an heir wants access to your Google account and you don’t give them the password, they’ll need to provide a name, address, photo ID, email, and death certificate. Which is to say, it’s a lot easier for your family if you just give them your passwords.
So, when you’re putting together your list of usernames and passwords, include instructions for how you want those accounts handled, including if you want them to do anything specific with your home computer. It might seem a little weird, but if you want a little control over how your digital life is handled after you die, this is the only option. If you’re using a password manager like Lastpass then you can just look in your password vault for a full list of all your accounts and passwords. It only takes a couple of minutes to copy the ones that really matter.
Set Up a Master File of Everything
Once you have all your paperwork sorted, wills filled out, and everything else, it’s time to pack that all into master file you share with a close family member or friend. Remember, this includes everything about your life, so keep it in a safe place (or in a safe deposit box), and share it’s location with your family. After completing the steps above, you should have everything in order, but here’s what you should include (List culled together from UC Berkeley, The Wall Street Journal, and our own “In-Case-of Emergency” document):
Letter of instruction
Social security numbers/cards
Passports (numbers and expiration dates)
Driver’s licenses (number, expiration dates)
Names/address/telephone numbers of healthcare professionals
Healthcare proxies/living wills
Medications (dosages, name of prescribing physicians, pharmacy, address/telephone
Social worker or caseworker names and contact information
Passwords, web sites, and other digital information
Income sources (retirement and/or disability benefits, Social Security, etc.)
Financial assets (institution names, account numbers, address/telephone, form of ownership, current value) of cash, bank accounts, stocks, bonds, mutual funds, money market funds, retirement and pension plans, IRAs, annuities, life insurance
Real Estate (property addresses, location of deeds, form of ownership, current value)
Other assets (location of items/titles/documents/form of ownership, current value) including automobiles, boats, inheritances, precious gems, collectibles, household items, hidden valuables/items in storage, loans to family members/friends
Liabilities (Creditor institutions, address/telephone, approximate debt) of mortgages, personal loans, credit cards, notes, IOUs, other).
While some of these records need to be physical copies (like your birth certificate), others, like contact info, a copy of your will, and property information can be digital, so use whatever system you’re more comfortable with. Whatever you decide, keep everything organized in a folder together, and let a family member know where everything is.
If you need a little help getting everything organized, webapps Everplans, Get Your Shit Together, and CNN’s guide to estate planning are great resources that guide you through more of the specifics. As always, if things get too complicated, don’t hesitate to contact an estate planner for help—most will offer you a free consultation.