The death of the world famous popstar has shone a light on how important it is to have a Will in place says Hannah Blakey.
On 21 April 2016 the Queen celebrated her 90th birthday. A day of jubilation was planned, honouring the Queen’s life and her dedication to the Commonwealth and international affairs. On the day, however, it was the death of a Prince which shared the headlines alongside the life of a Queen.
For, also on 21 April, Prince, one of the twentieth century’s greatest musical artists, was found dead in a lift on his Paisley Park estate, near Minneapolis. In interviews with friends following his death, Prince has been described as healthy in his habits, tireless at work and an energetic creator who avoided alcohol and recreational drugs. His death has therefore left investigators and mourners alike grappling with how the musician’s life could have come to such a sudden end.
The unexpected nature of Prince’s death, tragically at the age of 57, alongside a flurry of other shocking celebrity deaths in 2016, exemplifies the importance of having appropriate estate planning in place. As it is never possible to know what is waiting around the next bend, preparation is vital.
On this side of the pond, the first step that all should take, once they are over eighteen, is putting in place a Will. By doing so, it is possible to avoid the inflexible intestacy rules that would otherwise apply, ensuring that you are in control of where your estate passes. Someone in the public eye, like Prince, should also prepare the Will with publicity in mind: a Will becomes public document after a person’s death. Including a trust or overriding power in a Will not only provides flexibility to adapt to whatever the future holds (a key consideration when you are putting a Will in place which is unlikely to be needed for decades) but can also protect the identity of heirs.
A key element of putting in place a Will is considering who to appoint as executors of your estate. The executors are responsible for collecting in and distributing the estate of the person who has died in accordance with the terms of their Will. The role of an executor is one of great responsibility. It can also be an onerous job, so it is important to consider whether those chosen will have the time and abilities to take on the role, especially at what is likely to be a highly emotional period.
To aid your future executors, the Law Society’s Wills and Inheritance Quality Scheme Protocol recommends the completion and maintenance of a Personal Assets Log. By keeping an informal inventory of your assets (and storing important policy documents alongside this list), you will enable your executors to piece together more easily what you own (and if your executors are professionals, more cost-effectively).
In the technological age in which we live, it is vital that, in preparing this log, you consider leaving clear instructions about what should happen to social media, computer games and other online accounts after your death, as well as more tangible assets. Preparing a list of all your online accounts, such as email, banking, investments and social networking sites, will make it easier for executors to work out your digital legacy and adhere to your wishes. Leaving a list of accounts (rather than a list of passwords and PIN numbers) is preferable, as an executor accessing your account with passwords and PIN details could be committing a criminal offence under the Computer Misuse Act 1990.
With an estimated estate of £200 million, and with no living children or partner, it is not yet clear who will inherit Prince’s fortune or the rights to his music. Wherever his assets pass, it is undoubtable that Prince’s memory will live on through his innovative music that defined an era.
Social media users are being urged to appoint a digital executor to make sure their wishes for their accounts are respected after death.
Many people do their banking, insurance and other financial business online, as well as engage on social media platforms, without giving much thought to legal protocols.
Director of Operations at the Australian Communications Consumer Action Network Narelle Clark told Nine to Noon people are increasingly storing their personal and financial information online.
They often don’t read the fine print and have no idea what will happen to their digital footprint if they die.
Ms Clark is hosting a forum set up by Internet New Zealand in Wellington on Thursday, which will feature experts discussing the types of steps people can take to protect their digital legacy.
“What you should do is sit down and, alongside your normal will, think up all of the things you want to do with your digital footprint,” she said.
“All of this stuff that you’re accumulating online, particularly if it’s got monetary value – I can’t stress that enough, if it’s got monetary value – make sure that your designated heirs can get access to all this after you move on.”
Some people want their Facebook accounts to remain open after they die so people can visit their page and remember them. Photo: 123RF
Facebook now allows members to set up a legacy contact, allowing its user to nominate someone who will decide whether their page is shut down, or kept online as a memorial page to the deceased.
“You can also download the entire contents offline so that your family can remember your photos and so forth offline, if they want to sort through them offline rather than online, but people often find having some online presence – especially if that’s how they interacted with you – can be comforting.
“People wanted to leave it there because they can go to that person’s Facebook page and remember them and be comforted by the memories and times they had fun together, when they visited the Louvre together or Eiffel Tower or whatever they did.”
Google, meanwhile, might not hand over access to family members without a court order, to protect the privacy of people who had been in correspondence with the email account holder. However, you can also set up an inactive account manager, who might be notified if your account hasn’t been used in some time.
Twitter reserves the right to keep high-profile accounts active after the death of the original owner, with the possibility that the account might use artificial intelligence to continue tweeting.
“If Twitter decides, arguably, your account is making them a lot of money because they like advertising they could well decide not to shut it down.
“And there is now such a thing as an avatar, that can live on and tweet in your name using artificial intelligence to look at all the tweets you used to tweet.”
New Zealand Law Society has a checklist online, about what questions you should ask yourself about what you want to happen with your digital legacy after you die, and information about what different social media providers require to store, disclose or remove your content.
Although there is no national legal consensus to guide digital estate planning, you can still develop an effective plan in consultation with your attorney. At the very highest level, this process involves the following steps: Completing a digital asset inventory, identifying a digital executor and consulting with an attorney, providing access to your digital assets, providing instructions, and granting authority.
Step 1: Complete a digital asset inventory to identify your digital assets
What to include: Examples of items to include are:
Hardware: For example, flash drives, US bard drives, digital cameras, backup CDs/DVDs, Computers, iPads, iPods, and other devices.
Networking: Router information, wireless network names and passwords
Software: For example, financial programs such as Quicken or online software subscription accounts, such as to Adobe Cloud
File structures: Information to indicate how and where files are organized on your computers and other storage devices
Social networking, social analytics, social curation, sharing, and online reputation management: For example, Facebook, Twitter, HootSuite, Buffer, Pinterest, Scoop.It, Paper.Li Klout, Kred
Professional networking: For example, LinkedIn, Plaxo, BizNik
Photo sharing and video: For example, Flickr, SmugMug, Shutterfly, Instagram, Vimeo, YouTube, Vine
Music streaming and sharing: For example, Spotify and Pandora
Media and online entertainment/apps stores: For example, Netflix, iTunes, Google Play, or Windows App store
Online presence/personal branding: For example, any websites and associated webmaster/analytics accounts, blogs, online commerce sites (if you run an online business). For example, WordPress, Blogger, Google Analytics, Google Webmaster Tools, About.Me
Online backup/file storage: For example, Skydrive, Dropbox, Wikispaces, Box.Net, and Google Drive.
Online merchants: For example, Amazon, ebay, iTunes, Nordstrom, Starbucks, or Netflix. Also, any digital subscriptions to local or national newspapers or online magazines.
Online gaming/virtual worlds: World of Warcraft, Second Life, XBox
Financial planning accounts: This includes banking, retirement, investment, credit card, loan, and insurance accounts that are accessed online.
Student and library accounts
Utility bill accounts that are paid online
Travel-related accounts: These could include frequent flyer mileage accounts, and travel planning accounts such as TripIt, as well as travel loyalty/rewards programs such as Hilton Honors.
Important: Be aware that although online services are helpful as repositories for digital asset information and instructions, it is critical to consult an attorney to ensure that you transfer assets in a legal manner. As Gerry Bayer and Naomi Cahn state:
Clients may have signed up with an on-line asset management company and so be hesitant to address these assets in the estate planning process. Clients may believe the companies’ claims that they will be able to distribute digital assets to beneficiaries or to destroy assets that the client wishes to discontinue on her death. Clients need to understand that the legality of these actions is doubtful. Although these companies can be used to store information, other estate planning methods should be used to transfer assets.
Step 2: Identify your digital executor and consult with an attorney
Choosing your digital executor: Your digital executor will carry out your end-of-life wishes for your digital estate. You may want to choose the same executor for your digital and physical assets, choose a different executor for your digital assets, or choose multiple individuals to perform the different tasks required to administer your digital estate. Whichever approach you choose, keep in mind that accessing online accounts and carrying out specific actions such as deleting an account or archiving information, requires technical knowledge and skill. Choose someone who has sufficient experience, is technically proficient, and adept at solving problems should they arise. That person should also be impartial so that they can carry out wishes that may be difficult for less impartial individuals (such as deleting accounts that you want deleted that certain family members may not want to delete for sentimental reasons).
It is important that your digital executor comply with applicable state and federal statutes and Internet service providers’ terms of service agreements. For example, depending on the terms of service of the email provider, if your digital executor accesses your email account without the email provider’s knowledge, that action could violate the providers’ terms of service and constitute identity fraud. Preventing such issues is one reason why it is critical to choose a skilled attorney.
Choosing your attorney: If you already have an estate planning attorney who is also experienced with digital estate planning, this is ideal. If you need help finding an attorney, a reputable bar association-sponsored lawyer referral service may be one option. For information, see the American Bar Association Consumers’ Guide to Legal Help. A high-quality directory of rated lawyers such as Avvo is another option.
Step 3: Provide access to your digital assets
If you have not already done so as part of Step 1, for each digital asset, note the information required to access it. For example, note the name and type of digital asset, and where applicable, the site URL, the user name that you use to sign in/log in to the account, your password, and any answers to secret questions, if required for account logins. If you used an online service when you completed your initial digital asset inventory, you may have entered this information as part of that process.
Step 4: Provide instructions on how to administer your digital assets
Instructions may include:
Notifying Facebook friends, Twitter followers, LinkedIn connections, and blog readers that you have passed away or are incapacitated.
Deactivating/closing social media profiles, or memorializing them. For example, Facebook and Google both provide ways for appropriate designated individuals to take specific actions as follows:
Facebook: Facebook provides an option to memorialize a deceased person’s profile. If you choose this option, this allows for friends to share their memories on your timeline and view content that you choose to share after you pass away or have become incapacitated. It also ensure that your memorialized timeline doesn’t appear in People You May know and other suggestions.
Google: In April this year, Google released Inactive Account Manager, which lets you share specific parts of your account data or notify one or more trusted contacts if your account has been inactive for a minimum of three months. The contact will be notified via email and if you choose to share your data, they will be provided with links to download your data, after their identify is verified.
Bequeathing information that you may want to be made available to specific people.
Closing or continuing websites: Designating someone to maintain or close your blog and perhaps archive important information, if allowable under the Internet service provider’s terms of service.
Specifying information that should not be deleted, such as valuable creative works completed or in progress, personally important photos, videos, or other content.
Posting a final online message that can be shared with your friends, family, and colleagues (an example of a moving final message is here). For example, you may want a photo album posted or a video. A growing number of online services and applications, such as ifidie, Recollect, and Bcelebrated, provide different ways to create an online legacy.
Step 5: Grant your digital executor(s) authority to administer your digital estate
This step is crucial and where you will want to work closely with your attorney, to ensure that your digital executor is legally authorized to carry out your digital estate planning wishes and he or she does not run afoul of applicable statutes, laws, and terms of service agreements.
Not everyone wants to leave this earth with their online accounts being managed by relatives and next-of-kin, or just floating around on the Internet forever. If you’re the kind of person who likes your privacy — even in death — you should probably make some plans to have all of your online and social media accounts nuked when you pass away.
Some services, such as Google and Facebook, let you set up your eventual account deletion before you get anywhere close to death. Other services will keep your account forever unless an immediate family member or the executor of your estate requests it be removed. Here’s how to make sure all your loose ends are tied up, and that nobody ever gets hold of your top-secret/possibly incriminating emails and Twitter direct messages.
Google’s Inactive Account Manager lets you choose what happens to your account when it becomes inactive for a certain period of time. You can set up the Inactive Account Manager to delete your Google account and all products associated with that account, including Gmail, Blogger, AdSense, and YouTube.
To set this up, log in to your Google account and go to this page. You will need to provide Google with a phone number for alerts — Google will send a message to this number before your account times out, so you know your account is about to become inactive. You will then need to select a timeout period (3 months, 6 months, 9 months, one year, 15 months, or 18 months).
Then, under Optionally delete account, turn on Delete my account. Click Enable to turn the Inactive Account Manager on, and you’re set. If you fail to log in to your account for the timeout period you selected, Google will delete your Google account and all data associated with it.
Facebook is one of few online services that lets you set a legacy contact — someone who can manage parts of your account and memorialize your page — for when you die. Facebook also lets you delete your account when you die (though it doesn’t use inactivity to determine that you’ve passed away).
To make sure your Facebook account is deleted when you die, open Facebook and go to Settings > Security > Legacy Contact. Check the box next to Account Deletion.
You will see a pop-up box asking if you really want to delete your account in the future. Click Delete After Death and then re-enter your Facebook password to save your changes. Your account will now be deleted when Facebook is notified of your death — this means that if anybody tries to memorialize your page, it will be deleted instead of memorialized.
Use a digital legacy service
Google and Facebook give you the power to delete your account when you die, but many sites and services — such as LinkedIn, Twitter, Microsoft, and Yahoo — do not. These sites will delete the account of a deceased person at the request of an immediate family member or the executor of an estate (by the way, you can and should delineate how you want your digital life to be handled in your last will and testament). If you want to take full control, you can use a digital legacy services like Perpetu.
Perpetu is an online service that covers Gmail, Facebook, Twitter, Dropbox, Flickr, LinkedIn and GitHub. You connect your accounts to Perpetu, and then you outline your final wishes for each service — for example, you can request that Perpetu delete certain emails from your Gmail account, delete tweets and direct messages from Twitter, or delete files from your Dropbox account.
The service can’t really delete actual accounts, but it can delete data and leave final updates for your friends and family to see. Perpetu’s service kicks in when the company receives a report of your death from a trusted contact with your reporting code, so it’s still a good idea to put this in your will.
The issue of Digital assets has come up again in the mainstream press. It was covered on the CBC in Canada and then was picked up by media outlets around the World. The Washington post ran with the headline
Her dying husband left her the house and the car, but he forgot the Apple password
The Daily Mail in the UK also ran the story with the headline “Widow who wanted her dead husband’s Apple ID so she could play games on their iPad is refused and told to get a COURT order instead”. The Sydney Morning Herald also alerted its readers. Google news is claiming 19,000 separate news articles about Peggy Bush, the 72 year old Canadian widow who simply wanted to play some games on the family iPad. The card game stopped working so she wanted to update it. To do this, she needed her late husband’s Apple ID password.
The best option that Apple gave her was to create a new Apple ID, but this would mean re-purchasing all of the games that had already been purchased by her husband. There was no way of transferring the games from one Apple ID account to another.
Apple suggested that they would only be able to release the User ID and password of the account with a court order. The general reaction was that this was a little unsympathetic to the situation; all of Peggy’s late husband’s assets had been successfully transferred, and nobody, including banks and insurance companies, had required a court order to do this.
Why digital assets?
These stories are fascinating because there is no consistent legislation in place to handle digital assets. It is left up to companies to create their own procedures, and many companies deal with this issue on a case-by-case basis. We are guilty of this at USLegalWills.com where every day we speak to family members trying to work through an estate, and the first step is trying to locate a Last Will and Testament.
We don’t like to be heavy-handed or insensitive, and when you are dealing with a grieving widow over the phone who wants to know if her husband has documented any of their wishes. It is very difficult to “do an Apple” and insist on a court order.
The process for transferring ownership of a car or house is quite well documented. But the process for transferring the balance of a PartyPoker account, or a photo-library of Google Photos, or a family tree on Ancestry.com, is inconsistent at best.
What exactly are digital assets?
Let’s start with what they are not. Having online access to a bank account, does not make your bank account a digital asset. In the context of estate planning, digital assets are items that exist online that have sentimental or financial value. But also accounts that just need to be managed that really have no intrinsic value. There are broadly three classes of digital asset;
Accounts that need to be managed for housekeeping
We all now have countless online accounts, and for most of these it makes sense for somebody to take responsibility to close them down. I personally have 3 LinkedIn contacts who have died. Once a year, I am prompted to congratulate them on their work anniversary. It’s sad, disrespectful and distasteful. Most online services have processes in place for the closing of an account, but it’s a good idea to make somebody aware that the accounts exist. In most cases it makes sense for your Executor to take responsibility for going through the process of administering these accounts:
Accounts that have sentimental value
These need to have a beneficiary defined in order to avoid family disputes. They can include family photograph collections, memoirs collected in a blog, family trees developed at Ancestry.com or even virtual worlds. Some of these online collections have taken years of effort to develop and somebody should maintain them, or at least download them. There is no way to directly transfer a Flickr account for example, to another Flickr account. So all of the photos need to be downloaded and then potentially uploaded to a new account.
Just supposing family members don’t get along. What happens when one family member takes it upon themselves to access the family photos or even close the account down, before the other family members have had a chance to react? These are digital assets which are every bit as emotionally valuable as a porcelain teapot.
Accounts that may have monetary value
These are digital assets that have serious estate planning consequences. Although they are “digital assets” they have real value in the real World. These include things like ad revenues from blogs or YouTube videos, online gambling accounts, and even virtual currency.
One of the intriguing examples though is the area of domain names. We know that domain names trade for very large sums of money, but nobody technically “owns” a domain name. They are all effectively leased.
If you were to own “toys.com” and then passed away. If nobody does anything with that domain, it will become available to the first person to grab it for about $10. If a member of your family, or digital executor were to transfer it, and then sell it, it would easily be worth over $100,000.
Your Last Will and Testament should have a plan for digital assets like domain names.
The blurred lines between these
There is a growing grey zone between emotionally valuable digital assets and those with financial value. Particularly in the area of vanity or prestige “handles” that were grabbed by early adopters of new services like Twitter handles and account names for things like Skype or Gmail.
It is only a matter of time before we see loved ones fighting each other for the Pinterest ID of “savvymom” or the gmail account of email@example.com. Technically many services do not permit the transfer of a user ID, but it would be easy for a loved on to assume an ID, particularly if there was some prestige associated with it.
There are digital assets that we have never heard of; the next Facebook, Twitter, Pinterest, Instagram, and the early users of the new services will be grabbing the most prestigious user names. These will then become digital assets.
What about other accounts?
There was a recent article in the Canadian media addressing the issue of the transfer of airmiles. A woman died with 250,000 Aeroplan points and the family wanted them transferred to her husband. Aeroplan demanded the payment of a $2,500 administration fee, resulting in a social media backlash. The interesting twist though is that Aeroplan are actually one of the very few loyalty programs that would facilitate this at all…even with a fee. We did a quick check of the major loyalty programs in the US, and couldn’t find a single one that would transfer points to a beneficiary.
Rewards Certificates and Perk Certificates are not transferable and may not be combined among Members or conveyed by any means to anyone, including through a Member’s estate, and may not pass to a Member’s successors and assigns. Rewards Certificates and Perk Certificates do not constitute property of the Member. Accrued Points, accrued Perk Purchases, Rewards Certificates and/or Perk Certificates are not transferable by the Member upon death
In March 2013, Delta Airlines changed its policy, declaring SkyMiles would no longer be transferable upon death. And BestBuy Rewards have the standard “no transfer” policy
Reward certificates are not transferable and may be used only by the member to whom issued.
Death without a digital executor
For more traditional assets like bank accounts, the process is well established. Your Executor presents your Last Will and Testament to the probate courts. The courts then issue a “grant of administration” which is used by your Executor to gather your assets. This document is accepted by the banks to release the contents of an account, confident that the person requesting the asset is the court appointed Executor.
Even though online services have processes, they have no way of knowing who has the authority to act on an account.
The system generally relies on loved ones having the User ID and password of an account, so they can take the appropriate action of collecting the digital assts or closing the account.
Twenty years ago, loved ones went through the filing cabinet of a loved one to make sense of an estate. Today, the “golden key” is access to the deceased’s main email account.
But without a designated digital Executor it is easy for family members to be treading on each other’s toes to reassign ID’s, close down accounts, and transfer digital assets. Facebook for example have an option to memorialize an account. Who will be making the decision to do this? a spouse? a child? a parent?
Do you want your passwords to be shared?
Simply giving your password to a loved one is not a strategy. Giving your master password for a service like LastPass or Dashlane will provide unfettered access to your digital world for your loved ones, but it’s rather wide reaching.
You may not want every digital asset to be known to your loved ones. They may be embarrassing or secret accounts that should die with you. These include online dating profiles, online help for personal issues, order history for private goods, personal correspondence, diaries, medical histories or treatments.
There are perfectly reasonable reasons for not wanting every part of your life in the hands of a spouse or child.
In addition, it’s important that a master password gets into the hands of the people who need it at the appropriate time, and not before. The consequences can be catastrophic.
Documenting all of your assets and wishes
The issue of course goes beyond digital assets. This is why we have partnered with MyLifeLocker to allow you to create a complete compendium of your online and offline life.
The single most difficult task for your Executor will be to gather your assets. If these are not documented anywhere, the task is never ending. According to a recent survey around 7 percent of Americans admitted to having a bank account that was secret from their spouse. It is even more likely that there is some money or an account that is not known by your Executor.
To avoid this asset going into the black hole of unclaimed accounts (There is currently $42 billion in unclaimed funds floating around in the United States, according to the National Association of Unclaimed Property Administrators (NAUPA). You should document these assets in a tool like MyLifeLocker.
One quick note on the listing of assets that is commonly misunderstood. You do not want to include all of this information in the actual Last Will and Testament for two important reasons:
You are not writing your Will because you think you are going to die today. Your Will is not likely to come into effect for many years into the future. You do not want to have to update your Will every time an asset changes as this would require stepping through the formal signing procedure every time.
Furthermore, once your Will goes through the probate process, it becomes a public document. Anybody and everybody can read it. There are some assets that you may want to keep shielded from the eyes of the World, and you most certainly do not want to include your login credentials for your online accounts in a public document.
But I’m not going to die any time soon
Many new businesses have been set up to address the challenge associated with digital assets, but they are invariably flawed in that they require you to pay an ongoing subscription. The service then kicks in and offers value once you die.
This means that all the time you are paying your monthly subscription and staying alive, you are getting very little value out of the service.
It also requires that the silicon valley startup outlives you….statistically, not likely.
One other note about these services; they often claim to let you upload your Will to their server for easy access. An uploaded Last Will and Testament would not be a legal document, so it would actually be useless if your Executor tried to use it.
It is a good idea to create your LifeLocker (or equivalent service) today, and then update it throughout your life. But it’s difficult to justify a monthly subscription to a service when you are probably not going to die for another 30+ years.
Fortunately, we offer a one-time lifetime subscription option which not only allows you to update your LifeLocker throughout your life, but also your Last Will and Testament and other estate planning documents.
LifeLocker and the keyholder
Once you have met the challenge of documenting your digital assets, and keeping them updated, you need to make sure that they are available to the right people at the right time. And not before that.
At USLegalWills.com we have addressed this with our Keyholder™ mechanism. You name trusted keyholder and give them access to services within your account at USLegalWills.com. They can then unlock these documents, which are then published after a safety timer has expired. The detailed flow is explained in the following graphic.
Bear in mind that it may not only be after you pass away. But there may be key information in your LifeLocker that would be useful to somebody with a financial Power of Attorney document if you are ever incapacitated or in a coma.
Digital Executor laws in the US
There is a growing recognition of the role of a “Digital Executor”. Most people are familiar with the roles and responsibilities of a traditional estate Executor, who gathers assets, files taxes and arranges a funeral. But the person most adept and handling this paperwork, may not be the most qualified to conduct an online account audit. It is also important to note that there is no legal appointment for somebody to take over your Flickr account, so it is unclear at this point what happens in a family dispute over a Twitter handle for example.
Recently the Uniform Law Commission passed the Fiduciary Access to Digital Assets Act. The ULC creates suggestions in the hope that individual States will adopt their recommendations. In this case, the Fiduciary Access to Digital Assets Act recommends that a Digital Executor should be granted access to an online account irrespective of the individual site’s Terms of Service.
There are clearly privacy concerns with this, but it makes sense to grant some legal authority to a digital Executor. Most companies are not equipped to deal with bickering loved ones fighting over a digital domain.
The Digital Beyond recently calculated that almost one million Facebook users in the US will die in 2016.
But States are slow to adopt digital executor laws. By our most recent review, only Connecticut, Delaware, Idaho, Indiana, Maine, Maryland, Michigan, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, and Virginia have any digital estate laws in place.
The steps you should take right now
Firstly, we would recommend that you prepare your estate planning documents using a service like ours at USLegalWills.com. You should have at least a Last Will and Testament no matter how old you are. You should also consider a Financial Power of Attorney and a Living Will (Healthcare Power of Attorney).
The next step is to document your assets including your digital assets using MyLifeLocker at USLegalWills.com.
The final step is to designate trusted keyholders who can access this important document at the appropriate time.
We have a dedicated support team who can help you through this process. If you have any questions, then please feel free to leave a comment.