A Last Will and Testament, commonly referred to as a Will, allows one to specify how their assets will be distributed and who will be in charge of distributing those assets as the Executor of their estate upon their passing. This is different from your Agent / digital executor […]
Many of us will accumulate vast libraries of digital books and music over the course of our lifetimes. But when we die, our collections of words and music may expire with us.
Someone who owned 10,000 hardcover books and the same number of vinyl records could bequeath them to descendants, but legal experts say passing on iTunes and Kindle libraries would be much more complicated.
And one’s heirs stand to lose huge sums of money. “I find it hard to imagine a situation where a family would be OK with losing a collection of 10,000 books and songs,” says Evan Carroll, co-author of “Your Digital Afterlife.” “Legally dividing one account among several heirs would also be extremely difficult.”
Part of the problem is that with digital content, one doesn’t have the same rights as with print books and CDs. Customers own a license to use the digital files — but they don’t actually own them.
Apple AAPL, +0.79% and Amazon.com AMZN, +0.98% grant “nontransferable” rights to use content, so if you buy the complete works of the Beatles on iTunes, you cannot give the “White Album” to your son and “Abbey Road” to your daughter.
“That account is an asset and something of value,” says Deirdre R. Wheatley-Liss, an estate-planning attorney at Fein, Such, Kahn & Shepard in Parsippany, N.J.
But can it be passed on to one’s heirs?
Most digital content exists in a legal black hole. “The law is light years away from catching up with the types of assets we have in the 21st Century,” says Wheatley-Liss. In recent years, Connecticut, Rhode Island, Indiana, Oklahoma and Idaho passed laws to allow executors and relatives access to email and social networking accounts of those who’ve died, but the regulations don’t cover digital files purchased.
Apple and Amazon did not respond to requests for comment.
There are still few legal and practical ways to inherit e-books and digital music, experts say. And at least one lawyer has a plan to capitalize on what may become be a burgeoning market. David Goldman, a lawyer in Jacksonville, says he will next month launch software, DapTrust, to help estate planners create a legal trust for their clients’ online accounts that hold music, e-books and movies. “With traditional estate planning and wills, there’s no way to give the right to someone to access this kind of information after you’re gone,” he says.
Here’s how it works: Goldman will sell his software for $150 directly to estate planners to store and manage digital accounts and passwords. And, while there are other online safe-deposit boxes like AssetLock and ExecutorSource that already do that, Goldman says his software contains instructions to create a legal trust for accounts. “Having access to digital content and having the legal right to use it are two totally different things,” he says.
The simpler alternative is to just use your loved one’s devices and accounts after they’re gone — as long as you have the right passwords.
Chester Jankowski, a New York-based technology consultant, says he’d look for a way to get around the licensing code written into his 15,000 digital files. “Anyone who was tech-savvy could probably find a way to transfer those files onto their computer — without ending up in Guantanamo,” he says. But experts say there should be an easier solution, and a way such content can be transferred to another’s account or divided between several people.“We need to reform and update intellectual-property law,” says Dazza Greenwood, lecturer and researcher at Massachusetts Institute of Technology’s Media Lab.
Technology pros say the need for such reform is only going to become more pressing. “A significant portion of our assets is now digital,” Carroll says. U.S. consumers spend nearly $30 on e-books and MP3 files every month, or $360 a year, according to e-commerce company Bango. Apple alone has sold 300 million iPods and 84 million iPads since their launches. Amazon doesn’t release sales figures for the Kindle Fire, but analysts estimate it has nearly a quarter of the U.S. tablet market.
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.
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.
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.
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.
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.
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.
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.
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.
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.