Your house, children, jewelry and art, these are all the typical items a person will think about when planning their Estate. However, what is often forgot about is a person’s digital assets. In a report on digital assets, Kimberly Whaley , defines digital assets as digital photos, word and […]
Who will get to read your emails and blog posts when you die? Can my kids get copies of my digital photos and mp3 music files after I pass away? The North Carolina legislature recently answered that question by passing the Revised Uniform Fiduciary Access to Digital Assets Act […]
Go green and pay your bills online. Store digital photos in the cloud. Manage client lists on a spreadsheet or subscription contact service.
What will happen to those digital assets when you die?
People used to leave a paper trail of account statements, insurance records and treasured personal items such as photos and music recordings. Now it’s a jumble of digital data.
And instead of being stored in a lock box, electronic records are buried behind user names and passwords, protected by terms of service agreements that few people bother to read.
In February social media giant Facebook allowed its 1.4 billion users to add a “legacy contact,” a trusted friend who has permission to look after a Facebook page after the user’s death.
But an immortal social media presence is just the tip of the iceberg of the growing issue of managing one’s digital estate — the nuts and bolts of personal property built up over a life.
The average U.S. Internet consumer had digital assets valued at nearly $55,000 according to a 2011 survey by McAfee, Intel’s digital security arm.
A Harris Interactive poll found in 2013 that 93 percent of Americans who have digital assets were unaware or misinformed about what would happen to their digital assets upon death.
“People don’t get paper statements anymore. If they don’t leave a footprint, you have to turn into a detective to find out what their financial picture is,” said Ann E. Meilus of Barre, a lawyer who specializes in elder law and estate planning. Ms. Meilus also chairs the tax, trusts and estate section of the Worcester County Bar Association.
The generation of tech-savvy baby boomers, who are now approaching 70 at the older edge, is adding urgency to the need to plan for a digital afterlife.
Ms. Meilus said: “(Age) 70s and up don’t really live their life online. The 60-year-olds are usually one way or the other. Younger than that, more people are living their life online.”
Problems arise when an heir or representative of the person who set up an online account tries to gain access to that account. Sometimes the heir can’t even get into the account holder’s computer or smartphone to access stored documents.
Federal computer privacy laws written decades ago, including the Computer Fraud and Abuse Act of 1986 and the Electronic Communications Privacy Act of 1986, prohibit unauthorized access to computers or to the contents of communication that is on a computing service without the owner’s consent.
State probate laws haven’t kept up with technology either. According to the National Conference of State Legislatures, only eight states — Connecticut, Delaware, Idaho, Indiana, Louisiana, Oklahoma, Rhode Island and Virginia — have enacted laws addressing access to email, social media accounts or other electronically stored information upon a person’s death or incapacity. Nevada provides for the termination of a person’s social media accounts upon death.
State Rep. John V. Fernandes, D-Milford, is the lead sponsor on a bill filed this year, H. 1287, to allow reasonable access to a decedent’s email accounts. A similar bill and companion Senate bill No. 702, co-sponsored by state Sen. Michael O. Moore, D-Millbury, and others did not pass in the last legislative session.
Mr. Fernandes said that his bill, which has gained support over the years, was filed to address the inconsistency across email providers about who has access to accounts.
He said there is a greater national debate going on about access to all digital assets and he wanted to make sure that proposed solutions would be appropriate to the type of electronic information. For example, bank records also have to comply with banking regulations.
According to Mr. Fernandes, “The underlying question that is raised by hosting companies is, ‘Who owns this information?'”
The National Conference of Commissioners on Uniform State Laws adopted a model Uniform Fiduciary Access to Digital Assets Act last year to remove barriers to a personal representative, trustee, conservator or designated agent to access electronic records.
In the meantime, even people who have been given power of attorney to act on another person’s behalf may still not be able to access electronic records if it’s not spelled out.
Ms. Meilus said not being able to access electronic accounts not only delays settling an estate after someone has died; it also has cost people by preventing them from preserving assets so they wouldn’t be tapped by the state for long-term care payments under MassHealth. In other words, people have had to pay privately – and expensively — for nursing home care because they had too many assets in their name to qualify for state aid.
Managing a parent’s records can be complicated even when only a portion of accounts are online.
Beckley Alley Gaudette, 55, of Upton, the youngest of five children, helped her oldest sister handle her 87-year-old father’s accounts when he died last summer.
“He got my sister onto his accounts a month or two before he died. He realized he wasn’t able to handle the checkbook anymore,” Ms. Gaudette said.
Her father was a retired business owner in Pennsylvania and had handled the financial decisions for the family.
While still an “old school” person who wrote checks by hand, Ms. Gaudette said, “He would check his account, he would check his investment portfolio online.”
She said, thankfully, he gave his daughters his login name and passwords so they could more readily see his financial status.
There were still surprises. “We discovered insurance policies we knew nothing about,” Ms. Gaudette said.
Negotiating Social Security benefits for her 86-year-old mother after her father died was also cumbersome because it couldn’t be handled by Ms. Gaudette or her sister online.
“It made me realize there are a lot of elderly people who are not getting the benefits they deserve because they can’t navigate the system,” she said. “She (her mother) was not able to do it on her own.”
Ms. Gaudette is grateful her father was finally able to have a family conversation about arrangements for his estate.
“As much as he was meticulous in setting this all up, he was also fiercely independent,” Ms. Gaudette said. “It was hard for him to share it with my sister and me.”
“I ask people when they’re older to keep a file or tell people where their passwords are located,” Ms. Meilus said. “I ask them to at least keep their financial institution information in a folder. At least give us some clue where to go.”
Worcester Register of Probate Stephanie Fattman said that judges in the Probate Court hadn’t yet seen digital estate claims, but she anticipated it would become an issue as the population that conducts more of their lives online ages.
Imagine the scene. Sober solicitor, probably with half-rim glasses, surrounded by grieving relatives about to read out the last will and testament of Great-Uncle Johnny: “And to my beloved niece, I leave access to my online poker and bingo account and to my great-nephew Frankie, all my iTunes credits.”
It might seem far-fetched but as more and more of us amass digital assets, it is exactly the kind of will we might need to consider drawing up.
Real-life solicitor Matthew Strain is already advising clients about digital inheritances and says making provision for these things in a will or codicil is “relatively straightforward” (see our template for a digital asset will).
“With more photos, books, music and so on being stored online and in digital format, the question of what happens to these when people are gone becomes more important every day,” he said.
“Online possessions – from digital photos and videos to music and apps have monetary and emotional value to their owners, and potentially their loved ones.”
People who do not take care of their digital possessions risk losing them when they die and they could leave relatives with unpaid bills.
“Their estate may be liable for ongoing subscriptions to online magazines or newspapers,” said Mr Strain.
The bluntly-named iCroak is an online service aiming to help people plan how their digital assets are managed after their death.
For an annual fee of between £10 to £15 or a one-off membership of £150, the user can categorise their assets and create “Guardian” accounts for those assets they want to preserve or bequeath.
The “Guardian” will receive an email with a unique username and password and link to iCroak. When the person who has nominated them dies – and a death certificate must be verified first – they will be able to see what has been left to them.
Of course some people will have accounts of a more questionable or embarrassing nature that they would not particularly want anyone to access so there is also an option to mark them for deletion upon death.
Cloud hosting firm RackSpace is convinced that, as we store more of our online stuff remotely, we face a real dilemma about what to do with it after we’ve gone.
It commissioned a study in association with the centre for Creative and Social Technology at London’s Goldsmiths University and found that we are sitting on a goldmine of digital assets.
According to the survey, Britons are storing £2.3bn worth of music, film, applications and subscriptions online.
It found that one in 10 have already put their passwords in their wills so that relatives can access their digital treasures.
Nearly a third of the 2,000 respondents to the study said that they have considered their digital inheritance while over half believed some of their treasure possessions were in services such as Facebook, YouTube and Flickr.One of those surveyed, Kelly Harmer, said she had been forced to think about her digital assets following a recent car accident.
“I store many of my most treasured memories online, as digital photos and often don’t have printed copies. I also have things online which are worth money, such as my music collection and digital magazine subscriptions.
“I wanted to make sure that, if something happens to me, my family and friends would be able to access these digital possessions,” she said.
She has now written down all of her relevant login details and passwords in a document.
“I’ve given this to my mother for safe keeping and I’m now looking to take this a step further and put instructions in my will regarding my digital assets,” she said.
It is advice we could all do with following. Now I just have to work out who to leave my vast collection of armour sets from World of Warcraft to.
Click here to view original web page at How to bequeath Emblem3 to loved ones
I was about to speak with my friend and author Peggy Hoyt recently about how happy I was that I completed my estate plan. I figured that getting an estate planning expert and author of books on the subject to “bless” my intentions would provide a level of confidence that I had considered everything.
“Dad, what happens to your iTunes songs and Kindle books if you pass on?”
No one can make you stop and reconsider every action you’ve ever done in life like your children.
When I informed my lovely daughter, who seemed to ask the question with less remorse about my demise, and more concern about ensuring that she continues to have access to her Emblem3 songs and Divergent e-books, that I didn’t know, it seemed that the call to Peggy would have to wait.
Did I need to be concerned about this? Do I need to consider my digital assets into my estate plan?
A recent article on the ally blog points out that, “Estate planning of digital assets is a relatively new focus for concern for both consumers and their attorneys — and something that shouldn’t be overlooked. Your heirs may not be able to find or access all of your digital assets if you don’t include them in your estate plan.”
The article states that 87% of adults use the Internet and I can’t speak for others, but I know that I have spend lots of money on songs and books that exist only in the Internet, accessible only with my password and personal information. Shouldn’t these be considered assets and something that falls under the purview of estate planning?
In the article, James Lamm, an estate planning and tax attorney at Gray Plant Mooty law firm in Minneapolis, Minn. said, “Digital assets hold both financial and sentimental value to family and friends that should be addressed in the estate planning and administration process.”
Lamm recommends that estate planning include a thorough and rigorous review of identifying a person’s digital properties and identifying which of them are “valuable or significant.”
“Additional obstacles with digital property that you don’t have with traditional property are passwords, encryption, computer crime laws, and data privacy laws. Any one of them can make it practically impossible to do anything with the digital property unless you’ve planned ahead,” Lamm said.
Listing Web assets, passwords, and all online accounts is a tedious exercise, but if digital assets exist there, you need to consider them or they will disappear into the ether, when you, ahem, do the same.
A necessary resource to assist you is the process is an article in Estate Planning magazine from May 2013 , which provides a clear outline of what items need to be considered. These include consideration of your email information, social-networking site information, blogs you maintain, online financial sites, digital photos and more.
Another resource is Lamm’s website, DigitalPassing.com , where he provides great advice on the subject including explanations of the Terms of Services contracts from various online providers and how they may impact the ability for fiduciaries to access this information, even if they have the password information.
He reports that laws are changing as more people and authorities recognize that digital assets are part of a person’s estate. It’s an area that is worth watching. The ally article states that “Lamm stresses that until the laws are changed, taking the steps to safeguard your digital assets isn’t infallible. But it will make it easier to have your wishes followed if you put them in writing.”
Obviously I still have more work to do on my estate plan and with the consideration of digital assets, it’s clear that what we know about estate planning is changing. Well at least, my estate plan will look a lot different from what I originally thought and because of my book and song collections, clearly unique and different from others.
In her book, ” What’s the Deal with Estate Planning? ” (published by People Tested Publications, which I have ownership in), Peggy Hoyt makes clear that, “A primary goal of estate planning should be to create a plan that works-for you and your family. No two families are alike and no two plans will ever be alike.”
So before I consider my estate plan complete, I’ll have to consider those Emblem3 songs. Just don’t make me listen to them.