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.

Digital legacy: A legal dilemma if not included in the Will

Digital legacy: A legal dilemma if not included in the Will

The concept of property has undergone plethora of changes, with the emergence of social networking platforms. The photos we share, the posts we make are our digital property. Every person now-a-days has a part of himself online, and the family and friends would want to preserve this legacy too after a person is no more. We have a lot of memories stored online which our loved ones would want to preserve. Digital assets also include music, films, email accounts and computer game characters.

In a very recent case of Toronto based Alison Atkins, the sixteen years old lost a long battle with colon disease. Her sister had a technician crack her password protected Mac Book Pro, as her family wanted to access her digital remains like her facebook, twitter, yahoo and hotmail accounts, which were her life line during her illness. Alison had pictures poems and messages written on these inline forums which her family wanted to preserve.

However, accessing Alison’s accounts without her authorization was an act of unauthorized access and punishable by law.

Under the Information Technology Act, 2000, it is a violation of Section 43(a) and Section 43(b) of the Act.

These provisions read as under:

Section 43: If any person without permission of the owner or any other person who is in charge of a computer, computer system or computer network,-

(a) accesses or secures access to such computer, computer system or computer network

(b) downloads, copies or extracts any data, computer data base information from such computer, computer system or computer network including information or data held or stored in any removable storage medium.

-shall be liable to pay damages by way of compensation to the person so affected.

The unauthorized use of Alison’s passwords violated the website terms of use and provisions of cyber laws too. None of the service providers allowed the Atkins family to recover her passwords and access her accounts as that would amount to a violation of her privacy. The attempts of the Atkins family to recover the digital remains of their daughter fell apart as facebook and all the other service providers started to block them out.

The digital era adds a new complexity to the human test of dealing with death. Loved ones once may have memorialized the departed with private rituals and a notice in the newspaper. Today, as family and friends gather publicly to write and share photos online, the obituary may never be complete.

But families like the Atkinses can lose control of a process they feel is their right and obligation when the memories are stored online—encrypted, locked behind passwords, just beyond reach. One major cause is privacy law. Current laws, intended to protect the living, fail to address a separate question: Who should see or supervise our online legacy?

In 2009, Facebook began to allow family members to either delete or “memorialize” the accounts of the deceased. In a memorialized account, the people on a person’s existing friend list can still leave their comments and photos with the account of a dead person. But nobody has permission to log in or edit the account. However, this could also lead to cases of cyber defamation where there could be defamatory posts made, and the family is not authorized to delete or edit them.

The only solution to this is that digital legacy must be included in wills, and people should leave clear instructions about what should happen to their social media, online accounts and other digital assets after their death. If we make our wishes clear now as to whether we want our digital legacy to be closed down or preserved, it becomes much easier for loved ones to comply with our wishes.


What is Digital Estate Planning and Why Do I Need it?

Digital inheritance becomes growing issue for online generation

It’s been nearly five years since Korean actress Choi Jin-sil died, but her public homepage still lives on in cyberspace.
The site now acts as a digital memorial for the nation’s beloved leading lady, as her fans continue to leave messages of sympathy and appreciation.
Though many photos and journal entries remain online, there hasn’t been a single update since her passing.
Unfortunately due to a lack of legal precedent, even Choi’s family members are unable to manage her account.

“Though there are no current laws that exist to allow family members of the deceased to gain administrative access, the personal site can still be shut down. However, some choose to leave it up.”

The matter of digital inheritance remains a hazy area of law at home and abroad.
It centers around the the fate of our digital property, such as emails, online photos and social networking messages, after we die.
In recent years, an increasing number of families have been voicing a right to reclaim their lost loved ones’ online assets.
International websites like Facebook and Twitter let users decide what they would like to do with their accounts after a period of time, whether it be giving a farewell message or deleting all information.
Meanwhile, the growing public demand for such services has prompted Korean lawmakers to push for broader policies and practical solutions to this problem.

“When you join a portal site and give your personal information, you should also be able to specify what you want to leave behind. This is why a digital inheritance law is needed.”

As we upload more of our lives online, the more significant and larger our digital inheritance becomes.
And in every case, a choice should be given to either leave it as our lifelong legacy or allow our family and friends the peace and closure they deserve.
Paul Yi, Arirang News.