How To Deal With Digital Assets In Estate Planning

How To Deal With Digital Assets In Estate Planning

ONLINE PRESENCE

Due to recent technological advancements, one’s digital presence has become an important part of every day life. As a result, it is increasingly important to consider how this may impact traditional estate planning. With increasing frequency, individuals are creating complex lives online, which may include a social media presence, electronic banking, reward point balances, online investments, and many other possibilities.

Many people also now store digital assets that can have strong sentimental value, such as family photos or favourite playlists, online. As the types of assets that we store in digital formats continues to expand, important issues, such as how they will be accessed post-death, should be a consideration during estate planning involving our more traditional assets.

It is important to note that the issue of digital assets and estate planning does not concern only the younger generation. The conveniences and increased accessibility of technology have also attracted a large portion of the older population, including many who may already have estate plans in place. As it is always recommended that an estate plan be periodically revisited, especially when there are any significant life changes, the organization and implementation of digital assets should also be considered at these junctures.

Unfortunately, it is all too common to see these types of assets overlooked in a will. First and foremost, it is essential for advisers to be asking the right questions about the nature of a testator’s assets. This may require probing beyond the consideration of traditional assets, such as real property and bank accounts. In many cases, a digital asset may have no monetary value and it may be overlooked for this exact reason. Asking pointed questions regarding digital assets and having the testator prepare a list of information he or she stores online can help determine how these assets should be distributed or managed.

Another important aspect to address is how digital assets will be accessed after death. Digital assets and accounts are typically accessed by way of a username and password. If the executors of an estate are not provided with this information, they may encounter difficulties when trying to determine what these assets encompass and in obtaining access in order to effectively administer them.

The rules surrounding executor access to online accounts following the death of an account holder vary significantly. It is prudent to provide your executors with a list of online accounts and the corresponding access information rather than risk future inaccessibility as a result of different access requirements. Many sites are based outside of Canada, which means that the executor may encounter conflict of laws issues in the event that the executor’s authority is not recognized in the relevant jurisdiction. This can result in unexpected costs and delays in the administration of the estate.

In order to address this, it is highly recommended that testators give careful consideration to providing a detailed list of any virtual accounts and to an appropriate method of storage for the username and passwords, to be used after death. There are multiple ways in which this can be accomplished. For instance, it could be in as simple a format as a list that is given to your executors prior to death or attached as a memorandum to the will itself. It is not recommended that the password list form part of the will itself, as it may be made public if the will is probated. However, it is important to bear in mind that this list should be updated periodically. Passwords are sometimes changed (voluntarily or mandatorily) and accounts may be added or deleted. A static list that is created at one point in time will not necessarily be an accurate reflection of the virtual accounts and access information at the time of death.

Another storage method is to make use of online password storage services. There are multiple sites that have been established to provide this service. They are designed to store usernames and passwords to all virtual accounts in a safe and secure format which can be accessed by one master password. In this way, the list can be updated easily and an executor only needs to be provided with one password in order to access all of the necessary information.

As for social media, special concerns may arise with respect to personal preferences surrounding how these accounts should be dealt with post-death. Some may prefer to have these accounts shut down altogether, whereas others opt to have them memorialized in such a way that friends and family have a place to share memories of the deceased. Given these different approaches, it can be useful to provide some direction to your executors regarding your specific preference on the issue. Leaving a social media account open without any planning may seem harmless, but can inadvertently cause unnecessary pain to loved ones. For instance, if the account is not memorialized or deleted, photos of the loved one may appear in Facebook’s “Year in Review” and friends and family will continue to receive annual reminders and prompts to wish the deceased a happy birthday.

In 2016 and beyond, it is impossible to ignore the fact that technology has changed the way we live. Our lives are increasingly intertwined with the virtual world and, accordingly, plans should be made so that assets and information stored digitally are appropriately dealt with at death.

How I learned to live forever

How I learned to live forever

Say goodbye to having to die.
Say goodbye to having to die.

When my grandmother passed away this year, I was devastated. She may have been in her late 80s, but her sunny personality and boundless energy made it seem like she’d would probably just live forever.

My grandma was what you’d call a “silver surfer.” From the moment she inherited her daughter’s old laptop, she embraced the internet like a digital native. It wasn’t long before we were helping her set up a Facebook profile which she used to happily spend hours sharing cute animals videos and writing us sweet messages ALWAYS WRITTEN ENTIRELY IN CAPS. I gave up explaining to her that this amounted to constant shouting. She liked it that way.

A few months after she’d passed away, I was a bit shocked to see her picture pop up in my notifications, reminding me that it was her birthday. I hadn’t forgotten, but it saddened me to imagine other family members whose grief was still very raw receiving similar messages. I had thought—perhaps naively—that since Facebook knew enough about my life and habits to bombard me with targeted advertisements it would also know my grandmother was no longer with us. But the bots didn’t have a clue.

I looked up the procedure to report a death to Facebook, and requested that her account be “memorialized.” This means that nobody can log in to the account again, but her posts remain visible to the people they were originally shared with, and friends and family can continue to share memories on her timeline. I wanted to digitally preserve the memory of my grandmother.

After making my request I almost immediately received a response from someone in Facebook’s community operations team asking me to send them her death certificate. Their response struck me as strange and insensitive—like I was making it up for some reason. Since I didn’t have that document (my grandmother lived in Brazil and I didn’t handle the funeral arrangements), I argued that they should be able to verify her passing through the evidence available on their own platform. Facebook eventually agreed, but I can’t say it was a particularly pleasant process.

Technology is currently challenging our conceptualization of what it means to live—and die.“The tech industry is not really up on death,” says Stacey Pitsillides, a design lecturer at the University of Greenwich who is a PhD candidate in the field of data contextualization in digital death. Since starting her research several years ago, Pitsillides says she’s witnessed a remarkable shift: People are becoming increasingly eager to immortalize personal experiences online, just as I had felt after my grandmother’s passing.

This observation prompted her to set up Love After Death, a panel showcased at FutureFest in London to help people explore how technology is becoming integrated into new forms of creative expressions around death and dying. I met Pitsillides at FutureFest, a festival of ideas sponsored by innovation charity NESTA, to discuss the concept of digital legacies.

Technology is currently challenging our conceptualization of what it means to live—and die. Pitsillides believes that technology and design will play an increasingly important role in the process of morning, which she calls “creative bereavement.” “By creating a bespoke legacy agreement, it merges the concept of a design agency with funeral director,” she said.

To illustrate this, Pitsillides started by taking me through a questionnaire that asked me things ranging from the practical (which loved ones should be informed of my death, and would I like to setup a database of music, art, or poetry to be used at my funeral?) to the weird and outlandish (would my friends like to do an online vigil through live webcasting where I could be present via hologram, and how about having a memorial implant or tattoo?)

But wait—holograms? Memorial implants? Was this for real?

In the future, yes.

Death by Design

“You could have a surface-level or below-skin digital tattoo that could be matched to that of a loved one,” Pitsillides explained. Using simple technologies, you could add content to these digital mementos throughout your life and then have them activated after your death. This activation could either be triggered by the executor of your will—over 19 US states have already put forward laws to recognize the deceased’s digital legacy as part of their estate—or we could evolve AI systems to recognize cues when this should happen. At that point, certain content could become available to the people you’d predetermined, depending on the stipulations you left in your digital will.

It’s basically the futuristic, high-tech version of wearing half of your lover’s heart-shaped locket. These tattoos and implants could even be programmed to trigger only in the context of certain events. For example, when walking past the special spot where a now-passed husband proposed to his wife, his widow’s digital tattoo could change color or bloom into the pattern of her favorite flower, and “their” song could start playing on her phone. Or a father could still “be there” to deliver the speech at his daughter’s wedding via hologram, or greet the arrival of his first grandchild with a pre-recorded message.

An increasingly popular service is using 3D printing to create personalized mementos for your friends and family using human ashes.While these memorialization usages are still conceptual, the technology itself is already fairly mature. For example, we already have technology that allows for smart epidermal electronics to collect and record information about users, reacting to this data in a wide variety of programmable ways: Think of IoT devices like Dexcom that continuously monitor glucose levels for diabetes patients, allowing them to track their blood sugar via apps linked to wearables like the Apple Watch. Instead of being focused on what our minds and bodies are doing in the present moment, these tactile technologies could help us build and enhance connections with people both during life and after death.

As more people embrace the idea that death in the digital age is not just about looking back at the past, they will begin to realize that it’s just as much about the future. We’re already seeing people grapple with this concept in terms of what happens to our bodies after we die. Nowadays your ashes can be turned into building blocks for a coral reef or a beautiful fireworks display, but there’s a whole other after-world emerging courtesy of technology. For example, an increasingly popular service is using 3D printing to create personalized mementos for your friends and family using human ashes.

The Talking Dead

Since such a large percentage of our lives and interactions are now conducted online, we are constantly forced to reassess our meaning of self and identity. Is our online identity the most accurate reflection of our true selves? And, if so, can it “live” independently from our physical bodies?

The answer is potentially yes. The connections we build and share can—now quite literally—take on a life of their own. For example, websites like LifeNaut offer services that allow you to create a “mind file” that supposedly enables future scenarios around reanimation through “downloading” your memories to a robot or clone vessel of some sort. We might not yet be at the stage where robotics and AI enable the Black Mirror scenario where life-like replicants of loved ones can be created from their social media profiles. But it’s no exaggeration to say that, for better or for worse, our digital footprint already outlives our biological self.

“We are moving toward a society where the dead are not banished but remain present in our lives as sources of guidance, role models, and as an embodiment of particular values and life lessons,” Pitsillides said.

But is that what we really want? The ability to live forever through technology raises difficult questions such as whether it is our memories that make us who we are, whether our loved ones would accept this “new” version of us, and who should control consent to make these kinds of decisions after death. This kind of permanence may be appealing for some, but for others the possibility of a digital presence continuously and independently evolving is quite disturbing.

Most of us avoid thinking about our own mortality until it stares us in the face. As someone who spends most of my time online, I’m unsettled by this idea of not being in control of my online persona once I die—even if I wouldn’t be in a position to care, at that point. But having experienced the enduring joy that my grandmother’s Facebook memories have brought to our family, it makes me think that my digital legacy is something worth preserving. And now I have the first steps to know how to do just that.

You can follow Alice on Twitter at @AliceBonasio. We welcome your comments at ideas@qz.com.

Death 2.0: Dying in the era of technology

French Gaming Law Amended to Allow for Shared Liquidity

In what could be an important legislative victory for online poker players in France, the French Senate passed three amendments to the “Digital Republic” Bill. Of particular note is one of the amendments which permits the Autorité de régulation des jeux en ligne (ARJEL), France’s online gaming regulatory body and sponsor of the amendments, to enter into agreements with other European nations to share player liquidity. To this point, France has been ring-fenced from the rest of the world, with French online poker players only able to play against other people in France.

A (roughly) translated version of the amendment gives a brief look at why such a change was needed. “….the steady decline of the gross proceeds of the online poker games can be explained by the fact that the French regulated market…is abandoned by some players who turn to illegal operators including poker tables, field global Action, are more attractive: in fact, over a table or a poker tournament players, the greater the reward, the higher the site is attractive.”

In other words, the ring-fencing of the French poker market has created a player pool that is artificially smaller than those at other sites that are open to the rest of the world. ARJEL has determined that French poker players have been willing to forgo French licensed sites and take their chances with “illegal” operators outside of the country who offer larger player pools and, in turn, more table options and greater prize pools.

There are certainly French sites that are of decent size and give players a solid gaming experience, but with only players from within France’s borders from which to pull, they will never be as large as some of their competitors. According to PokerScout.com, the largest French-only internet poker room is Winamax.fr with a seven-day average of 1,050 cash game players. That ranks as the sixth-largest online poker site in the world, nearly in a four-way tie with the iPoker Network (1,100 players), PokerStars.it (1,100), and partpoker (1,050).

PokerStars.fr has 900 cash game players, partypoker.fr has 400, and iPoker.fr has 260.

So that is the “why” of the amendment. Here is the “what” (again, Googly translated):

….the online gaming regulatory authority may allow an operator holds a license under Article 21 to offer starting players a verified account on a site subject accreditation to participate in circle games as defined in the first paragraph with the players holding an account on a site subject to approval by a member State of the European Union or State party to the agreement on the European economic Area.

“Circle games” are poker games, specifically Hold’em and Omaha, the only two poker games that have been approved by ARJEL.

One important detail here is that the shared liquidity can only be with sites “subject to approval” by an EU or EEA member country. Read that to mean “regulated” by such a country. The EU is composed of 28 nations, while the EEA includes the countries in the EU plus Iceland, Norway, and Liechtenstein. This is potentially notable because of one country that is not included in either of those groups: the Isle of Man.

The Isle of Man Gambling Supervision Commission (GSC) licenses a number of online gaming sites, but the one that stands out is PokerStars.com. The way the amendment reads, it seems like French players, even those on PokerStars.fr, would not be able to sit at the same tables as players on PokerStars.com, since PokerStars.com is not licensed in an EU or EEA country. French players could sit with players on PokerStars.eu, PokerStars.uk, PokerStars.es, and PokerStars.it, but not PokerStars.com.

That would, of course, limit the ceiling on shared liquidity, but that’s not the only potential problem. Players on PokerStars.eu, PokerStars.uk, or any other PokerStars site that is not French, Spanish, or Italian play with people on PokerStars.com. Thus, some technological solution would need to be figured out to allow French players to play with others in Europe while weeding out non-EU, non-EEA players on the dot com site.

Similar situations might exist with other rooms and networks, but PokerStars is clearly the most significant.

The bill being amended, the Digital Republic Bill, is actually quite unique. Adopted by the French National Assembly on January 26, 2016, it establishes rules, regulations, and individual rights for the digital/internet environment. The bill was not simply created by a bunch of out-of-touch lawmakers, either. Instead, the public given a seat at the virtual table in an open process in which citizens could suggest additions and amendments. When completed, the bill covered issues such as:

1. Net neutrality – all content providers must receive equal access to speed and bandwidth by ISPs; ISPs cannot charge more for preferred access.
2. Data portability – e-mail providers must allow users to migrate e-mails and contacts from one provider to another
3. Right to maintain a connection – those who can’t pay for internet service can receive financial assistance
4. Confidentiality of private correspondence – e-mails are private, just like postal mail
5. Minors’ right to be forgotten – it is possible for a person to have internet evidence of themselves, such as an embarrassing photo, scrubbed from the internet if that data was posted when they were a minor.
6. Online review verification – online review sites must ensure their reviews are genuine
7. Public data – any information that is supposed to be available to the public must be maintained and easy to access
8. Improved accessibility – public administration websites must meet regulations to make them accessible to users with physical limitations
9. Digital death – people will have a way to make sure their digital presence is handled in accordance with their wishes after they die.

The importance of digital asset planning explained

The Human Aspects of Digital Presence After Death

The Human Aspects of Digital Presence After Death

This week I came across this article by Brandon Ambrosino that provides a look at the human aspects of how we will interact with the digital data left by loved ones who have died. He discusses how he visited his Aunt’s Facebook page after her passing in a way to offer some comfort by reminiscing with the memories she left behind. He provides a stat that by 2012 there were 30 million Facebook users with accounts that were dead. He goes on to ask an important question that many of us need to consider.

How is our continuing presence in digital space changing the way we die? And what does it mean for those who would mourn us after we are gone?

people-vintage-photo-memories

This question requires us to give some thought to determine how we want to be remembered. Then we need to prepare for how we want to accomplish that. He goes on to explain how Facebook provides us with digital autobiographies that can be viewed by loved ones after we pass that will provide a detailed picture of who we were. He also touches on some new services coming online that can present a virtual version of who we are in the form of digital avatars and may provided changes to how we grieve.

At some point in time, there will be more dead Facebook users than living ones. Facebook is a growing and unstoppable digital graveyard.

It’s a great article that discusses an area that few seems to get little editorial coverage and is becoming more important as we continue to provide rich histories of our lives online. Facebook and other online services aside, we are creating so much personal data in the form of photos, videos, and other important documents and we need to have a plan for protecting and passing it on.

To learn more about how you can take steps to ensure that you’re protecting your digital data and plans for passing it on be sure to read the digital legacy section of this site which continues to be updated with resources.

Who will get your iTunes when you die?

Do You Have a Digital Estate Plan for Your Online Assets?

Digital lock
Digital lock

In this digital age, people amass an electronic wealth of sorts in social media sites, photo-sharing sites, and online accounts. But what happens to this digital presence when its owner passes away? Who becomes responsible for the disposition and transfer of these digital assets?

Proper digital estate planning, including record-keeping, securely sharing records with attorneys and trusted parties, and creating a plan for the social networks and websites that house digital accounts, should satisfy these concerns.

Estate planning for basic digital assets

Basic digital assets can include multimedia, copyrighted materials, and credits in customer reward programs. “Photos, videos, and blogs that are online, in the cloud, or on a personal hard drive or flash drive as well as e-books, movies, music, and frequent-flyer miles are good examples,” says Michael Wernersback, Senior Regional Fiduciary Manager of Estate Settlement Services with Wells Fargo Private Bank. Digital assets may include social media accounts and content on sites like Twitter , Instagram , LinkedIn , and Facebook .

These electronic valuables can be fleeting as well as precious. Without the proper precautions, they may disappear upon death. Since digital estate regulations are few and social sites typically have their own rules, one of the worst things a person can do is to leave these matters unaddressed.

“When we serve as an executor trustee, it makes our job difficult if someone has done nothing to prepare,” says Wernersback. As with tangible property, if the owner does not keep digital assets in order — if there is no record and no access, or if someone has to wade through disorganized digital property — the executor may miss something, which could be lost forever.

Keeping records
“Take an inventory of digital assets,” says Wernersback. Do you have songs in an iTunes account? Do you have frequent flyer miles? Do you earn income from a blog or website? “Make your executor aware of these things,” says Wernersback. “Talk to your estate planning attorney. See what he or she recommends.” They may suggest adding a fiduciary authority to the will or trust to preserve digital assets upon death.

People also should determine whether they own each asset or simply have a license to it. User agreements often include clauses that define whether an asset can be transferred upon the death of the original user. Reading these user agreements can be very helpful as you formulate your digital estate plan, advises Wernersback.

What to share, what to conceal
Consider recording user names and passwords for assets to enable access after death, but be careful with whom you share that information. “When you pass away, the information is readily available, and people can go in and start managing those assets. But if these passwords fall into unauthorized people’s hands, they have immediate access to all of your information,” warns Wernersback.

Remember that user agreements or prevailing law may prevent someone from using someone else’s password to gain access. “That is another question for the estate planning attorney,” Wernersback cautions.

Being too open with sensitive digital assets, such as those of a financial nature, may not be a wise move, according to Wernersback: “Keep in mind that a will is a public record. Obviously, you don’t want to list your digital assets for everyone to see, and passwords should not be included in a will,” he says.

However, for less financially or legally sensitive assets — photos, movies, and sentimental treasures from the cloud or Flickr — sharing freely with loved ones is not only acceptable but also may be a good idea, says Wernersback. “You may want to grant access to these less sensitive assets before death so that they have immediate control,” he adds.

Status of digital estate law
“People are just now moving their lives online, and the law usually lags behind the technology,” notes Wernersback.

“Only 10 U.S. states [Connecticut, Delaware, Idaho, Indiana, Maine, Nevada, New Jersey, North Carolina, Oklahoma, and Rhode Island] have passed any digital estates laws,” says Evan Carroll, co-author of Your Digital Afterlife . These laws grant rights to executors or others, given adherence to certain conditions. Consult your estate planning attorney about proposed laws in your state.