McBride: Digital estate planning

McBride: Digital estate planning

What happens to your digital property when you die? This can be a very challenging issue for your executor when settling your estate.

You can make your executor’s job easier by listing all the electronic devices and online services that you use. With a letter of direction, you can tell your executor what should happen to them after you die.

Inventory

Use an address book or worksheet to alphabetically list your devices and online accounts. Then tell your executor where to find your list. User names and passwords on your inventory list are the keys to open the doors to your electronic devices and keep online accounts active.

Remember that Canada’s privacy laws make it difficult for your executor to take over the online accounts of another person. When you sign up for an online account, the terms of service agreement restricts access to the account-holder only. That means you cannot bequeath your social media account, video game account, or gambling account to a beneficiary even if they have great value.

In the U.S., many states have created laws to give an executor the right to access and manage digital assets of a dead person. No similar laws have been enacted in Canada yet. Until our laws are updated and service providers change their policies, Canadians can include clauses in their wills that give executors permission to deal with digital assets.

Email

Your executor can browse your email messages to track down estate assets. Email messages give clues about bills to be paid. Email reminders to download T5 and T4RIF slips can lead to financial accounts. Your emails will reveal confirmations of business, gaming, streaming and shopping transactions.

Online business

Maybe you have YouTube videos or a blog that generates advertising revenue. If you are receiving thousands of dollars per month in payments from ad clicks, your executor would want to maintain that revenue stream.

Do you own a valuable domain name? Remind your executor to pay the fee to renew the registration until the domain name is sold.

Electronic devices

Your executor should find all your electronic hardware such as smartphones, tablets or laptop computers. Keep these devices and safeguard them until data can be extracted. Once all online accounts have been closed or transferred, electronic devices can be stripped and passed along with other estate assets.

Social media

After you have died, your executor can access and delete your Facebook, Twitter and LinkedIn accounts by knowing your passwords. What if the family wants continued access to their loved one’s online photos and personal messages? Social media websites will eventually take steps to protect privacy as a standard security procedure.

Facebook allows family members to either delete or “memorialize” the accounts of a deceased user. In a memorialized account, a person’s existing friends network can leave comments and photos but nobody has permission to log in or edit the account.

Music, e-books and photos

Who gets your collection of digital photos and videos in online cloud storage and social media sites after you die? Some digital assets cannot be legally bequeathed to anyone. You pay for a personal licence to use digital files, such as iTunes music and e-books. These personal rights expire when the user dies.

Even if you bequeath your iPad to a family member, you cannot bequeath the apps you have purchased and installed on your iPad.

Identity theft

Thieves can use a dead person’s information to create a fake identity to rack up credit card charges and apply for loans. Your executor can safeguard the estate by notifying credit agencies of the death.

Terry McBride, a member of Advocis, works with Raymond James Ltd. The views of the author do not necessarily reflect those of Raymond James Ltd. Information is from sources believed reliable but cannot be guaranteed. This is provided for information only. We recommend that clients seek independent advice from a professional adviser on tax-related matters. Securities offered through Raymond James Ltd., member of the Canadian Investor Protection Fund. Insurance services offered through Raymond James Financial Planning Ltd., not a member of the Canadian Investor Protection Fund.

How to Manage a Client's Digital Estate After Death

How to Manage a Client’s Digital Estate After Death

In our exploding digital world, it’s essential to help clients plan for both their real-life and digital estates.

There are many questions involved: Who’s in charge when it comes to digital property? Who wants to approach a widow who is grieving about taking down the deceased’s account? Do family members have the right to access their loved one’s account after a death? Would the individual who has passed want family members to access their content, or to have the account removed? Is it possible to commemorate the person by memorializing the accounts?

These conversations can go well beyond the topic of social media. It’s important to consider all the digital assets of the deceased, including email accounts and websites for online bill paying, retail accounts such as PayPal and photo sharing accounts. These sites contain sensitive personal information and financial data that could pose privacy concerns if left unattended indefinitely.

PLANNING TIPS

Here are some pointers to pass along to clients and their families, and tips for you to consider for your own planning needs.

First, consider the key questions to ask your clients:

What social media platforms do you use?

What are your passwords?

What would you like to happen to these accounts after you die?

Then:

Document the Stated Goals. And, if applicable, share these with the client’s attorney or whomever your client names as their “digital executor.

Leverage Technology. There are many client portals available today to house important client documents.

Provide Legal Documentation. When individuals pass suddenly, or if they haven’t outlined their wishes for terminating a social media account, each of the major social media channels will typically request legal documentation in order to begin the closure process (check out this helpful infographic from Mashable).

DELETING DIGITAL ASSETS

However, this is a very new area, and each of these sites is in its infancy in terms of putting together policies. We have heard heartbreaking stories of people who put all their photos on Facebook and haven’t provided anyone with a password. Upon their passing, Facebook was not able to give the family access to the account, and all the photos were lost.
Here’s a quick rundown of what is required by the most popular networking sites when discontinuing a social media account:

Facebook: Facebook has two options for what to do with a deceased family member’s account.

  • Memorializing a profile. This feature allows the account to be viewed but not edited (with the exception of a legacy contact allowed to make one final post, usually regarding funeral arrangements, etc.)
  • Terminating an account. An individual can deactivate a profile by completing a Special Request for Deceased Person’s Account; it is necessary to provide your relationship as well as a copy of the deceased person’s death certificate, birth certificate or proof of authority for the family member handling the deactivation.

LinkedIn: There are two options to handle a deceased person’s account.

  • What is needed. If you have the password of the individual, you may follow LinkedIn’s instructions to simply close the account. However, if you do not, there is a process to terminate the account that requires you to provide certain information about the deceased person.
  • Who can do it: In LinkedIn’s case, it can be any one of the following: immediate family (spouse, parent, sibling, child), extended family (grandparent, aunt, uncle, cousin) or non-family (friend, co-worker, classmate).

Twitter: Twitter will work with the estate to remove an account.

  • What is needed: Fax copies of the death certificate and your government-issued ID (such as a driver’s license), along with a signed, notarized statement and either a link to an online obituary or a copy of the obituary from a local paper.
  • Who can do it: A verified immediate family member of the deceased or a person authorized to act on behalf of the estate.

YouTube: As YouTube is affiliated with Google, you must reference the policies on Google’s site. It provides for a number of options, including closing the account and requesting funds from the account.

  • What is needed: To terminate a YouTube account, you can begin the process here.
  • Who can do it: Immediate family members and representatives.

Keep in mind that social media accounts often change their policies, and it’s important to revisit procedures even after you’ve had a conversation about terminating an account.

ADVISOR’S ROLE?

You might wonder if discussing social media with your clients should actually be part of your role as a financial advisor. I believe this is a major planning need for your clients, and one they may not be thinking about. As an advisor, your role in these sensitive conversations about a little-understood space is a key one – and may help you to stand out from the competition.

I believe it will eventually become commonplace to discuss social media and a client’s digital footprint when preparing long-term financial plans and wills. Right now, most people don’t know where to start.

And one thing is certain — no one wants to put their loved ones in the awkward position of having to decide what to do with their accounts during the difficult period following a death.

Amy Sitnick is the social media contributor for Practically Speaking and also serves as a Senior Marketing Manager for the SEI Advisor Network.

Is AI The Key To Eternal Life?

Keeping a Secure List of Passwords, Online Accounts, and Digital Property

An important part of a comprehensive estate plan (planning ahead for incapacity and death) is preparing a complete list of your passwords, online accounts, and other digital property—and keeping it up to date. This list helps fiduciaries and family members find your valuable and significant online accounts and digital property, keep administration costs down, provide for a smooth administration, and ensure no property is overlooked.

A written list is easy for anyone to create, but it’s insecure to keep with you at all times and may be inconvenient to update. A sample written list is available on my blog—I call it “My Digital Audit.” You can download the Adobe PDF form to your own device and either edit it electronically or print it and fill it out by hand. Keep your written list in a secure location, like a safe deposit box or a home safe. Secure storage and frequent updates don’t work well together for a written list, so an electronic list or a hybrid method combining an electronic list and separate written instructions is preferable to only keeping a written list.

Personally, I prefer to use an encrypted electronic list because it’s secure, easy to update, convenient to use, and it’s on my smartphone so it’s always with me. A master password is used to access the encrypted data in the list. So, I only need to remember one master password, then I can use the electronic list to keep track of all my separate, strong passwords for each online account that I use. An electronic list can be stored on a smartphone, a computer, a portable storage device, or in the cloud.

When choosing software or a Web-based service to keep an encrypted electronic list of passwords, online accounts, and digital property, look for one that synchronizes your list among your computer, tablet, and smartphone (and the cloud, if desired) so that it’s easily accessible by you. Also, look for one that integrates with your Web browser to securely and automatically enter the username and password for your online accounts. In addition to being a time-saver, it also encourages you to use separate, strong passwords for each of your online accounts (if you’d like to learn more about strong passwords, read this article from Microsoft on Six Rules for Safer Financial Transactions Online). The ones that integrate with your Web browser also help keep your list up to date by automatically updating your list when you create a new online account or when you change an online account’s password. If the software or Web-based service stores your list in the cloud (not just stored locally on your device), make sure it encrypts your data before sending it to the cloud so that the service provider (or a hacker compromising the service provider’s security) can’t access your confidential data.

Five of the most popular free and commercial software tools to keep an encrypted electronic list are described in a January 11, 2015, article at Lifehacker.com by Alan Henry. The five encrypted electronic list tools the article describes, in alphabetical order, are: 1Password, Dashlane, KeePass, LastPass, and Roboform.

A key problem with an encrypted electronic list is that fiduciaries and family members need to know your master password in order to read your list while you are incapacitated or after you are deceased. Without the master password, the list may be practically impossible to access (e.g., if the list is protected with strong encryption and a strong password).

One idea is to use a hybrid method by keeping an encrypted electronic list of your passwords, online accounts, and digital property plus keeping a separate written instruction sheet describing how to find and access your encrypted electronic list, including the master password. Keep the separate written instruction sheet in a secure location, like a safe deposit box or a home safe.

Another idea is to use a Web-based service to both keep your encrypted electronic list and provide a mechanism for designated fiduciaries or family members to access the unencrypted list. Some of these Web-based services, in alphabetical order, are: AfterSteps, Assets in Order, BestBequest, Deathswitch, Estate Map, E-Z-Safe, PasswordBox’s Legacy Locker, and SecureSafe. However, unlike the software tools listed three paragraphs above, the Web-based services listed in this paragraph currently do not integrate with your Web browser to enter the username and password for your online accounts securely and automatically, which may make these services less convenient to use and less convenient to keep up to date. Also, if the service provider has the ability to turn over the unencrypted contents of your list to a fiduciary or family member that you designate, that means the service provider (or a hacker compromising the service provider’s security) potentially could gain access to your confidential data—this is a trade-off between convenience and security.

During your incapacity or after your death, fiduciaries and family members should read the applicable Terms of Service contract before attempting to use your password to access your online account. There are federal and state laws that penalize unauthorized access to computer systems and types of private or protected personal data. These laws provide consumer protection against fraud and identity theft but may have a chilling effect on fiduciaries and family members trying to access an incapacitated or deceased person’s online accounts.The U.S. Department of Justice asserts that 18 U.S.C. § 1030(a)(2), which is a provision of the Computer Fraud and Abuse Act (“CFAA”), is broad enough to permit the government to charge a person with a crime for violating the CFAA when that person “exceeds authorized access” by violating the access rules of a Web site’s Terms of Service contract or use policies. For example, some Terms of Service contracts prohibit you from allowing anyone else to access your online account, which may mean that a fiduciary or family member using your password to access the account is “exceeding authorized access” within the scope of the CFAA. If any of your online accounts has an access restriction like this in its Terms of Service contract, your fiduciary or family member should consider asking the service provider for a copy of your account’s contents instead of attempting to use your password to access your account.

The Importance of Creating a Digital Estate Plan

The Importance of Creating a Digital Estate Plan

In today’s digital age, the bulk of our lives seems to exist online or in other electronic formats. But the law has not caught up with that reality. While a few states have enacted laws protecting digital property and a family’s right to access it after a loved one dies, most states rely on the terms and conditions set forth by the managing service (such as Gmail or Facebook). It is safe to assume that not everyone reads the fine print, which means that we typically have no control or knowledge of what happens to our assets after we are gone.

Thanks to email and social media, we have accumulated a significant number of digital assets. Why then do we often fail to account for them in our estate plans?

Indiana is one example of a state that has addressed these issues. Under Indiana law, estate executors may access the deceased’s email, social networking and blogging accounts, as well as his or her text messages. The state requires a death certificate and documentation of the executor’s appointment before granting access to these accounts. While Illinois probate law does not expressly account for digital property, residents may take it upon themselves to protect these assets.

How to Include Digital Assets in Your Estate Plan

The first step is taking inventory of your digital assets. In addition to email and social media accounts, this might include online banking and utility accounts or insurance plans. You will need an accessible list of usernames and passwords, perhaps stored in a safety deposit box. (Remember that the terms of a will become public, so it is inadvisable to include information that will enable unwanted account access.)

You might be surprised at the extent of your digital life. Other digital assets and accounts might include:

  • Pictures (e.g., Instagram) and video (e.g., (YouTube);
  • Document accounts and files (e.g., Google docs and Word/Excel);
  • Websites and domain names;
  • Music (e.g., iTunes) and books (e.g., Kindle);
  • Shopping accounts (e.g., Amazon);
  • Bill payment services (e.g., PayPal); and
  • The physical devices (e.g., laptops and smartphones).

Next, consider who you want to access and control these accounts. Ultimately, this is a personal decision, but here are a few points to keep in mind:

  1. Who can you trust to preserve your online legacy according to your wishes? This might be important to someone who maintained an active social media presence, for example;
  2. Individual service providers like Google and Facebook provide afterlife solutions. It might be worth exploring these options when creating your digital estate plan; and
  3. Identity theft is just as much a problem after death as it is during life. Be sure that whoever has access to your online accounts will protect your privacy.

Once you have taken inventory of your digital assets and decided on a caretaker, the final step is to leave instructions in a will or trust. Creating an estate plan – digital or otherwise – is an important process and does not have to be undertaken alone.

Planning your digital afterlife

Planning your digital afterlife

Lawyers point out that a key difference between a digital will and an ordinary will is that a digital will is made online with digital signatures for digital property, and witnesses are not always required. Photo: ThinkStock

Further, who will get to own your online banking, mobile banking and app passwords, if such is the case? The answer: You will need a digital will.

A digital will can be defined as a legal method of protecting and bequeathing your digital assets like passwords, emails, data, intellectual property, or even online businesses, similar to the manner in which one would enlist and leave physical assets like property and cash for your next of kin.

The digital assets are entrusted to the next of kin or close confidant of a person by means of a document, duly signed by the person leaving his or her assets and instructions for the person to either use the assets or store them in a safe place like a digital locker that can be accessed online.

Lawyers point out that a key difference between a digital will and an ordinary will is that a digital will is made online with digital signatures for digital property, and witnesses are not always required.

“Digital wills are slowly gaining popularity among people as they realize the need to protect valuable data, including physical records like bank details, health information, books, photos, music, etc., that is increasingly being converted from a physical to digital mode and being stored in the cloud. The digital will is signed off with a digital signature issued by the government, either with or without digital signatures of one or more witnesses,” said Pavan Duggal, a Supreme Court advocate who specializes in cyberlaw and e-commerce.

Duggal said he has advised about 100 clients in the last three years on digital wills, “and the number is increasing, mostly by word of mouth, as people realize its importance”. However, he did not share client details, citing confidentiality pacts.

On 19 August, Delaware became the first state in the US to enact a law called the “Fiduciary Access to Digital Assets and Digital Accounts Act”, allowing executors of a digital will the same authority to take legal control of a digital account or device as they would of a physical asset or document.

India, though, is still a long way off from such legislation.

“The legislations in India presently do not recognize the concept of a ‘digital will’ or any other form of testamentary disposition by electronic means. The Indian Information Technology Act, 2000, in this regard has specifically excluded wills or other testamentary dispositions from the applicability of its provisions,” said Ramesh Vaidyanathan, managing partner at Indian commercial law firm Advaya Legal.

In the absence of a specific law for a digital will in India, the execution and enforcement of the testator’s (person who has written the will) will is governed by the Indian Succession Act, 1925, according to Vaidyanathan. In some cases, like with respect to emails or social media pages, the beneficiary may have to request the company concerned such as Google Inc. or Facebook Inc. for permission to access and, if requested by the testator, keep the website or social media page alive after the death of the person. However, any online operation of the deceased’s bank account is illegal and a criminal offence, he added.

Making a digital will could also help since it can be monetized.

According to legal experts, online books or research papers, or valuable advertising content, professional photographs—all of which may be subject to copyright or patents—can be monetized after a person’s death on his or her instructions. The person authorized can then continue to run the digital business, or even sell it.

“In such cases, taxes may also be applicable and the digital will may also be contested in a court of law, just like an ordinary will. However, there needs to be more legal clarity on this since digital wills still make up just a fraction of all the wills made in India,” said Daksha Baxi, executive director at Indian law firm Khaitan and Co.

The need of the hour, thus, is a more structured legislation to govern the use of technology and e-space in India, say legal experts. Moreover, since electronic documents can be manipulated, a major challenge is ensuring the authenticity of the contents of the will and genuineness of its execution, after a testator’s death.

The scope for digital wills in India still holds large potential, thanks to the burgeoning Internet user base and use of multiple digital devices.

“With the new Indian government promoting the use of e-governance, social media and technology to encourage the pace of growth in various sectors, and countries positively recognizing testaments made in electronic form, there is an expectation for recognition of such concepts in India,” said Vaidyanathan.

Duggal added that despite India having “a largely touch-and-feel culture, making digital wills in the country rare and legal firms dealing with digital firms rarer still”, digital wills could become popular as more people become comfortable with the online mode.

“Given the growing popularity of mobile phones, in the next five years, I expect even digital wills on mobile to become popular in India. Digital assets could even be bought and sold online with permission from the testator to the beneficiary in the future, like in the case of bitcoins today,” he added.