LEGAL ADVICE—Remember the Digital Age in Your Estate Planning!

LEGAL ADVICE—Remember the Digital Age in Your Estate Planning!

By Elizabeth Wynn

Remember the Digital Age in Your Estate Planning!

When an individual dies, the named executor or other fiduciary is allowed access to all physical assets including letters, documents, and legal papers. However, in today’s digital age, these fiduciaries also need authority over administering digital assets and accounts upon the incapacitation or death of the account holder.

Almost everyone has at least some assets that are not physical, but instead are stored as data and accessed through the Internet. These digital assets include emails, documents, online photo streams, social media accounts, insurance records, bank accounts, as well as logins and passwords used to access online accounts.

Imagine this. You could leave photos and videos behind that no one can access. You could have online accounts with money or credits left in them, or you could lock away important financial information with passwords that no one can access. Or you could have social media accounts that continue to produce painful reminders of your absence to your loved ones. This is a problem all of us who access the Internet will encounter in time.
There are a few things you can do to deal with these issues now before you die, leaving your loved ones with a tangle of inaccessible digital assets. First and foremost, make an inventory of all your digital assets. This will probably seem like a daunting task, but it doesn’t have to be.

Start with the most important assets and work from there. For example, you may want to begin with your primary email account. This is likely the most important step because usually this is where other online accounts interface, providing login and password resets, credit card balances, and accounts payable, just to name a few.

Second, decide what you want to happen to your intellectual property once you’re deceased. Do you actually want someone else to access your emails, photos, videos or other materials? There may be some things you want your loved ones to see and some things you don’t. Decide now and make sure your wishes are known.

Lastly, give someone authority over your digital assets in the event of your incapacitation or death. This can be done through a Power of Attorney, Last Will and Testament, or Trust planning, just to name a few.
You must also consider and plan for your online accounts. Google for instance, through their “Inactive Account Manager,” allows users to share parts of their account data or notify someone if they’ve been inactive for a certain period of time.

On the other hand, upon request and presentation of a death certificate, Yahoo will only allow you to delete an account. There are no options to access a decedent’s emails or photos. According to the Yahoo Terms of Service, “You agree that your Yahoo account is non-transferable and any rights to your Yahoo ID or contents within your account terminate upon your death.”

Facebook, once provided with a death certificate, will allow you to delete an account or memorialize it, which basically freezes it in time and removes it from certain features, like “People You May Know.”

Most of the major social media accounts have policies in place to deal with a decedent’s account in similar ways as these, and still others are silent. Check with the Terms of Service on all your online accounts to see what steps you need to take to ensure you include all your accounts in your digital asset estate planning.
Practically speaking, the best way to make sure these important digital assets go to the right people is to share the necessary information with those people. It’s never a good idea to include login information in your will because a will becomes public record at your death. This would allow any stranger to have access to these accounts.

Alternatively, in your estate planning documents you can direct your digital fiduciary to a safe place, like a safe deposit box, where he can locate this information. Another option is a password manager. There are online companies that allow you to choose a digital heir to inherit access to your passwords, which will be stored with that company.

Regardless of which method of retrieval you use, make sure you specifically include digital assets in your estate planning wishes.

Elizabeth Wynn is a member of the National Academy of Elder Law Attorneys and practices law in Ridgeland. She and her family live in Madison.

Digital Estate Planning

Digital Estate Planning

When writing a will or planning your estate you should also think about your digital assets and what will happen to them once you are gone.

A lot of people are not taking their digital estate into account when putting their will together, despite the fact that it could be worth thousands of pounds. Things like music files, films, ebooks, PayPal balances, online bank accounts and registered domain names all add up, and many people are sitting on a fortune in digital assets. Aside from the monetary value of digital property, there is also sentimental value to think about. Photos that are stored online could become inaccessible to your loved ones unless you specify your wish to pass your accounts on.

It’s Good to Talk

There may be assets that your family aren’t even aware of too. Talking about your will with your family is often considered a taboo, but it is vital to include your loved ones in the planning process and make them aware of any property they may not know about – particularly digital property. Compiling a list of any online accounts you own, as well as important or valuable files and their locations is the best way of ensuring they are passed on. Keeping an inventory will also help you to organise your digital assets to make the process easier. There are various password management services online which store usernames and passwords to any online accounts you have. This service is then accessed by a single master password which can be given to an executor so they can access all the information they need in one place.

Planning in Advance

Complications can arise when transferring digital assets. Handing over digital media such as music, films and ebooks may depend on the terms of service. Some providers may stipulate that despite paying for the product, you don’t actually own it, therefore cannot transfer ownership to another person. Some services actually require a death certificate to be presented in order to close or transfer ownership of an account or device. If you are planning to store your digital media with an online storage provider such as Dropbox, check the terms of service. Storing your media in one place, only for your relatives to find out they are unable to access your account after you have died could be devastating.

One of the best ways to ensure you secure your digital legacy is to seek help from professionals. If you would like advice or assistance on writing a will, please get in touch.

Don't Let Your Digital Assets Die With You

Don’t Let Your Digital Assets Die With You

This is not your father’s estate plan. No, your parents never had to worry about usernames, passwords and TOSAs (terms of service agreements). Their estate plans likely focused on the disposition of traditional assets – a house, bank and brokerage accounts, and the like – and were likely fairly straightforward.

But, increasingly, as our lives have become more virtual, you’ll have to think about how your loved ones and your fiduciaries can legally gain access to your digital assets should you die or become incapacitated, according to Suzanne Brown Walsh, a trusts and estates attorney with Murtha Cullina LLP.

Where to begin?

Getting a handle on digital assets requires a knowledge of one, traditional estate planning and traditional estate settlement; two, digital assets; and three, the difference between traditional assets and digital assets.

Traditional estate planning and estate administration typically involves the naming of a fiduciary, an executor for your will, a trustee for your trusts and a personal agent for a power of attorney. In the world of traditional estate planning and estate administration, those fiduciaries have the ability to manage or distribute traditional assets and accounts, bank and brokerage accounts, retirement accounts, property and the like when you die or become disabled.

But that’s not the case when it comes to digital assets. A digital asset is something that exists online and is probably intangible. It might be, for instance, an asset with mere sentimental and no monetary value such as a photo or voicemail, or it might be an asset that has monetary value, according to Walsh.

 

It could be, for instance, a blog or a domain that you own; digital currencies, such as bitcoin; accounts with iTunes, Amazon, LinkedIn, Twitter, Facebook; as well as reward programs and credit card points, according to William Bissett, a certified financial planner with Pinnacle Advisory Group and founder of Principled Heart.

And the big difference between your traditional assets and your digital assets is this: there are federal and state laws that protect digital assets and may impede fiduciary access to them. What’s more, technology providers have their own privacy and terms of use policies that may govern your digital assets and make access to those assets difficult or impossible.

“There are federal privacy laws that protect the companies that provide us with emails and certain other online services from disclosing our private information to anyone else, including our families and fiduciaries,” says Walsh. “So that means if we die or become incapable, the people who are managing our assets can’t call up Google and ask for access to our email accounts.”

The federal privacy laws do, however, allow companies to provide access to online accounts to third parties with their customer’s lawful consent, Walsh says.

So what do you need to do?

Given these complications, Walsh recommends that owners of digital assets draft – with the help of an estate-planning attorney – documents that give a personal agent or representative the ability to access online accounts in the event of the owner’s death or incapacity.

 

Those would include a digital asset authorization and consent form, durable powers of attorney, and trustee authority over settlor’s digital estate. See samples here.

“We suggest that our clients sign it and give their fiduciaries and their agents under power of attorney their lawful consent to access their online accounts that might be subject to these privacy laws,” says Walsh.

Another to-do is to create an inventory of your digital assets, user names and passwords (My Digital Audit is one example of a digital asset inventory form). You should also consider using a commercial DEP service, such as those found at The Digital Beyond. One such service stores all your user names and passwords and only requires that you remember one user name and password. “That way, if (you) get hit by the beer truck, (your) family will only have to remember one user name and password,” Walsh says.

In the event of your death or incapacity, Walsh also suggests that your loved ones and fiduciaries become familiar with such websites as Mylennium.com, which contains an index of many online sites with links to information such as the TOSA, privacy policy and termination information. See Domain Information Resources. Also, consider using commercial services such as Directive Communications Systems, which will assist in identifying and managing all types of online accounts. See a resource page here.

Also consider that some online companies, chief among them Google and Facebook, have policies that give you the ability to dictate who can look after your account in the event of death, incapacity or inactivity.

 

You can appoint a legacy contact, someone you choose to look after your account if it’s memorialized, on Facebook, for instance. See “What is a legacy contact on Facebook?”

And Google has an Inactive Account Manager, which is a way for users to share parts of their account data or notify someone if they’ve been inactive for a certain period of time. See About Inactive Account Manager.

Why do you need to plan your digital afterlife?

To be fair, you might question the need to plan for your digital afterlife. But there are many reasons, according to Walsh.

One, your digital assets might be worth a lot of money, and you’ll want to make sure you there’s no financial loss to your estate, says Walsh. In 2013, for instance, McAfee noted the average U.S. consumer had digital assets they valued at $35,000.

To boot, you don’t want to lose your story, your photos and the like. “In my world, we often find that families will fight over things that have no financial value but have the greatest sentimental value,” says Walsh. “Often digital photos are the most important digital asset. You don’t want to lose the story line that we now have in our social media accounts.”

Bissett shares that point of view. “The plan for pictures used to be that they kids will get them from the shoebox in the hall closet,” he says. “That was fine, but today they aren’t only in the shoebox. They sit online with a username and a password separating your loved ones from them – if they even know about them at all.”

 

Also, you might want to protect secrets from being revealed, a mistress or child born out of wedlock, for instance.

You’ll naturally want to avoid identity theft.

And lastly, you’ll want to make things easier for your families and fiduciaries to gain access to your digital assets in the event of death or incapacity. “Many Baby Boomers grew up in a time where they lived next door to their grandparents, had Sunday dinner ‘with the family, knew the President of the only bank in town, and saw everyone at church on Sunday,” says Bissett. “When someone died, it simply meant making a few phone calls. That is no longer the case and the legal world doesn’t support that anymore. It’s your responsibility to put things together in such a manner where someone can act like they lived next door.”

The laws they are changing

You’ll also need to know that digital asset laws are changing, and for the better. Walsh and others, for instance, have worked on something called the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA).

RUFADAA, which has been described by at least one expert as most important law you’ve never heard of, gives estate planners and fiduciaries greater ability to access and to manage digital assets, before and after death, according to Walsh. Read this post by Jeffrey Levine, chief retirement strategist at Ed Slott & Co., for more insight.

How A Personal Tragedy Helped This Founder Discover An Unexplored Market

How A Personal Tragedy Helped This Founder Discover An Unexplored Market

How A Personal Tragedy Helped This Founder Discover An Unexplored Market

Those of us in finance spend a lot of time planning for retirement (or helping others plan for retirement,) but life never goes exactly as planned. In case of a sudden tragedy that leaves you unable to care for your loved ones, there’s a company that will help guide them through the process of managing your affairs.

Everplans

Everplans co-founder Abby Schneiderman came to a realization when she was planning her wedding six years ago. Schneiderman was using wedding-planning websites, apps and calendars to organize the seemingly-infinite amount of moving parts that planning a wedding involves.

When she took a longer view of her post-wedding life, she found that there were plenty of services that would help her plan for retirement. But no one was offering to help her plan for beyond that, or, if she didn’t make it that far.

“The first idea for Everplans was to create the first consumer brand in end of life planning and help people navigate this topic in a way that was more modern and sophisticated and in a way that spoke to people like other sites that exist to help plan for other life stages,” Schneiderman said in an interview with Benzinga.

To build her business, Schneiderman took an unusual tack. Schneiderman and her co-founder Adam Seifer created Everplans by writing hundreds of articles about finding the best life insurance, how to pay for funerals, and the end-of-life traditions of various faiths.

“We wrote over 500 original articles on everything from how do you write a will to what to wear to a funeral, and everything in between,” said Schneiderman. “The light bulb went off for us when we noticed that we were the No. 1 organic listing for “get help finding life insurance.”

Personal Tragedy

Everplans’ SEO success came with some personal tragedy for Schneiderman. About a year after founding the company, her brother died at 51 in a car accident. She said it was a “disaster” for her family to figure out how he would have wanted to settle his affairs.

“In the event that there is a death in the family, whether it is a tragic car accident or a death that occurs for natural reasons, families are left in a nightmare situation,” Schneiderman said. “We found we could really be helpful by going beyond providing content. What if we could help people get a plan in place ahead of time? We could become invaluable to people at a critical moment in their lives. So that’s what we set out to do.”

Primary Products

Everplans has two primary products: a retail site that costs $75/year and an enterprise product called Everplans Professional, which allows financial advisors and estate attorneys to offer the planning service to their clients to build a deeper bond beyond the numbers. Both the consumer and professional platforms help users organize, store and share all their legal, financial, healthcare and personal information so their loved ones can find it when they need it.

Everplans now has over 2,500 articles on its site, as well as state-by-state guides, checklists and worksheets. The editorial content is overseen by Gene Newman, former editor-in-chief of Maxim’s online properties.

“The articles on our site look more like articles that you would find on a site like Buzzfeed than it does a site talking about planning for insurance,” Schneiderman said. “We really did that on purpose. The type of content that we have, the topics that we’re covering are things like digital cheat sheets, how to create a digital estate plan. We are walking people through the topics in a really nice and simple way and talking to them in a tone that is really very human.”

The strategy is paying off for the company. Everplans has raised over $15 million to date, most recently closing a $6 million Series A in June.

Learn more about Everplans on its site.

Creating an Effective Digital Estate Plan

Creating an Effective Digital Estate Plan

The term “estate planning” generally includes documents such as a Last Will & Testament, financial power of attorney, health care power of attorney and maybe a trust. However, to address the growing online presence of individuals from young to old, estate planning has grown to include planning of an individual’s digital assets on their death or disability as well. In fact, recent articles suggest that the average user possesses upwards of 90 online accounts. What exactly happens to those accounts when your clients die?

Many people assume that an executor or a family member will gain access to the accounts, but for many states, that is not currently the case. The laws in most states do not grant an executor or family member access to online accounts at the time the owner passes away. The Model Uniform Fiduciary Access to Digital Assets Act (UFADAA) was drafted to provide states with consistent rules and procedures for accessing digital information, however, many digital access providers have vigorously fought to stop states from passing legislation similar to the UFADAA. In an effort to take a step forward, some states have passed slimmed down legislation to allow limited access to certain accounts, such as email. In addition to state laws, each individual digital access provider has their own rules and requirements for gaining access to personal information.

Because access to digital accounts following the death of a family member can be daunting, it is important that clients implement an effective digital estate plan. The principles which guide traditional estate planning are also applicable to digital estate planning. Keeping important documents updated and in a place where family members and/or an executor can access the information is especially important with digital accounts. Most people have a myriad of email addresses, passwords, pin numbers, reset questions, thumbprints, secret knocks and code phrases that grant us access to our accounts. However, how many of those access keys are accessible by a family member and/or executor?

There are currently four methods to transfer access upon death: written instructions, access through specific digital providers, password managers and digital legacy services.

Written Instructions

Many digital users record their passwords and access information and store the instructions in a secure place, such as a personal safe or safe deposit box. If the information is updated regularly and stored in a safe location, this can be the cheapest and simplest method to transfer access to a surviving family member or executor. However, because passwords and other login information change regularly, it is important that the written instructions be updated regularly as well. The necessary upkeep of recording and storing this information can require a significant time investment.

Digital Providers

Many digital account providers are beginning to provide solutions to this issue. For example, Facebook now allows users to designate a profile executor who can access the account upon the death of the account creator. Twitter allows the person authorized to act on behalf of the deceased person to request an account to be deactivated. Email providers, like Google and Yahoo, will consider granting access to an account (or certain limited information) by the authorized person following a review of a written request, and a Gmail user can designate an Inactive Account Manager who may access certain information if the account is inactive for a designated period. While these individual solutions are helpful, it is difficult to prepare each account to be accessed by a surviving family member or executor, since each provider has different rules.

Password Managers

Third party password managers, like LastPass, KeePass and Dashlane, all provide methods to send access information to certain designated individuals on the death of the user. Generally, all password managers have the ability to share stored information with others; however, some password managers provide springing access. For example, LastPass allows users to choose one or more accounts to which they want to grant access and send an advance email to any individual. The email contains a link, which once activated, begins a countdown clock. During the designated timeframe, the original sender has the ability to reject access. In the event that the original sender does…