Digital death is still a problem. A widow’s battle to access her husband’s Apple account

ChVI: Workable solutions

While proper digital estate planning is crucial to the management of one’s digital assets and enduring legacy, the inability of traditional estate planning techniques and online digital estate planning services to provide satisfactory solutions can leave many people at a loss. However, attorneys can still provide workable solutions to the challenges of digital estate planning. First, attorneys should inform their clients about the importance of proper digital estate planning and hopefully get the clients to consider the goals of their digital assets. Proper management of digital assets is about more than just wealth. Legacy, appearance, and family sentiments should help shape the digital asset plan. Not all of digital estate planning will be the preservation of assets. In some
instances, decisions should be made to destroy, delete, and terminate digital assets. This is especially important due to the potential never-ending nature of digital assets.

Attorneys, wealth managers, and financial planners should then help the client compile, update, and retain a comprehensive record of the client’s digital assets, login information, and the location of digital assets. By passing along electronic storage devices such as a computer, phone, camera, or flash drive, many digital assets can be transferred to the deceased’s beneficiaries in the same manner as a traditional tangible asset. However, when dealing with digital assets not stored on a physical storage unit under the individual’s control, the access information may be stored on a password-protected and encrypted digital storage device—such as a flash drive—that the estate planning attorney provides to the client. This type of digital asset management system can allow for the individual to dispose of the storage device via his or her will, but continue to use the digital assets, make changes to the access information when needed, and safely store this information.
While serious concerns still exist with online digital estate planning services,  they should not be discounted entirely. These companies can provide valuable  planning strategies and management of one’s digital assets. However, it is crucial to perform a due diligence  review of any such service before entrusting the service  with access information or details about the digital assets. It is also important to  check with digital service providers to see what their policies are with regards to assets. Knowing the ownership rights and transferability of digital assets is a crucial step. This could also lead an individual to switch service providers if one company offers better digital asset rights.

Currently, there is no quick solution for disposition of digital assets. Instead, it must be a well-thought-out and developed plan that is integrated within the overall estate plan. Keeping track of assets, determining goals, and knowing rights are the crucial steps to maintaining, managing, and securely developing an estate plan for the proper disposition of digital assets.

What Makes up Your Digital Estate?

CV V: Current Digital Assets Planning Tools

In its current developmental stage, estate planning for digital assets is being done through wills, trusts, and online digital estate planning services. This section explores these three methods of transferring digital assets and discusses their individual shortcomings.
Through the use of traditional wills, individuals may express their intentions and plan for disposition of their assets. However, disposition and transfer of digital assets through wills can be problematic, as briefly mentioned earlier. Given that the average number of specific digital assets per individual is nearly 3,000 files, providing identification and access to all of these assets can be overwhelming. Due to the continuing growth and the changing nature of the digital assets, the will provisions may become quickly outdated. The speed of the digital world seems to outpace these traditional estate planning tools, as passwords and access information can change daily, requiring constant updates to the will. Although the digital property may belong to the decedent, the third-party user agreements and term-and-condition contracts may limit or completely block a beneficiary’s right of access to the decedent’s digital assets. In addition, wills may become a public document upon the decedent’s death; therefore, security and privacy aspects of the transfer of digital assets may be compromised.

Trusts can alleviate some of the above-described concerns. Trusts provide for a more secure transfer of digital assets than wills because trust documents do not become public. Thus, key private information regarding passwords, accounts, and contents remain out of the public eye. Further, the law permits individuals to transfer digital assets into a trust while maintaining control and use of the assets for the remainder of the individual’s life. Sometimes, the trusts are subject to more relaxed formation requirements than wills, allowing for easier creation and modification. As such, trusts can more easily adapt to the changing nature of digital assets. However, very few people actually set up trusts specifically designed for digital estate planning. Although both wills and trusts can transfer digital assets from the decedent to the beneficiaries, they are becoming a tool of the past due to the speed of today’s technology. In response, several online estate planning services have developed in order to facilitate one’s digital asset planning needs. These services are designed to specifically address the digital management, location, and confidentiality of one’s digital assets during an individual’s lifetime.
As such, these digital estate planning services have latched onto the lucrative digital asset management industry—anticipated to be a $1 billion industry in 2013. While these online digital estate planning services offer a degree of efficiency that is unmatched by traditional estate planning techniques—enabling individuals to update, manage, and track their digital assets on demand—serious concerns exist regarding their reliability and sustainability as estate management tools. For example, while digital estate planning services claim to provide exceptional account security, caution is nonetheless warranted because, not unlike a traditional bank vault, these services create a large repository of wealth and property, rendering them prime targets for cybercrime and theft.

Additionally, these digital estate planning services are not regulated and are often not run by attorneys, creating concern as to who is being entrusted with the individual’s passwords, assets, and information.

Finally, there are serious stability concerns as to the continued existence of online digital estate services, as these services are relatively new and turnover in the industry has been significant. However, digital estate planning services such as Eterniam, a Seattle, Washington-based company, are beginning to realize the importance of establishing trust with clients by stressing their commitment to security, privacy, and long-term stability. Estate planning ultimately should not be a short-term solution, but rather should provide lasting peace of mind and planning options to an individual testator.

Inaccessibility of Digital Assets

Digital estate planning is becoming an increasingly common practice.  However, security measures of internet and technology corporations have the potential to disrupt the implementation of a testator’s plans.

recent news article tells the story of a woman named Anthea Grant, who purchased an iPad for use during two years of cancer treatment.

The device was used primarily for entertainment during chemotherapy sessions and for video communication with Anthea’s sons, Josh and Patrick.

After Anthea’s death, her sons realized that they did not know their mother’s Apple account password.  Anthea’s sons are the sole beneficiaries of her Estate.  There is no controversy with respect to the sons’ right to possess the device.  However, Josh and Patrick have been unable to obtain access to the tablet to see if it contains any relevant information.

After providing their mother’s death certificate, a copy of her Last Will and Testament, and a letter from their solicitor, as had earlier been requested, Apple is now asking for Anthea’s written  instructions that Josh and Patrick are authorized to access her account.  As this is no longer an option, Apple recommends that the brothers obtain a court order to prove that Anthea was the owner of the iPad and Apple account, citing the American Electronic Communications Privacy Act as its rationale in denying access.

While Anthea’s sons do not wish to incur the legal fees necessary to obtain a court order for the release of the Apple account information, they wonder if the iPad contains any digital assets of any financial or sentimental value.

A digital estate plan frequently facilitates access to computer accounts, with a list of all accounts and login information.  Had Anthea created a digital estate plan, including such information, this issue would not likely have emerged.  Nevertheless, legislation in Canada and elsewhere remains an outdated barrier that should be amended to address the prevalence of digital assets in estate planning and administration.

Thank you for reading.