With rapid advancements in technology there is the increased likelihood that you have created a digital presence and online identity. As time goes by many of our ‘possessions’ are becoming digitised, creating a new category of personal property that being the ‘digital asset’.
What is a digital asset?
A digital asset is anything you may own, or have rights to, that exist either online or on hard storage devices. Some examples of your online assets include email, social networking, iTunes, cloud storage and financial accounts. Hard storage devices include assets such as computers, laptops, USB, smart phones and any other external storage drives which are locked by way of encryption.
Why is important to consider our digital assets in estate planning?
Whilst we are creating personal digital assets at an unprecedented rate, the laws governing them have not developed simultaneously. It remains unclear where the notion of digital assets fits among other traditional concepts of property. Therefore in order to protect these assets, it is important to make separate provision for dealing with them in your estate plan.
It is important to deal with these assets for various reasons. This includes the prevention of identity theft, to have your history and memories recorded and your wishes expressed, to continue the management of any online business, to assist your executors in the estate administration process and also for preventing any litigation which may be required in being able to gain access to such assets.
Furthermore, whilst the value of a digital asset may vary, the particular type of value of the asset may be significant for a loved one or beneficiary. For example, the asset may have sentimental value such as digital photos, or it may have significant monetary value such as a professional blog or writing.
How do I include digital assets in my Estate Plan?
The first step is to create a digital inventory of all your assets. This inventory will need to include the names of all your assets and where they are stored, as well as all the usernames, passwords and secret questions which will allow a nominated person to be able easily access them upon your incapacitation or death.
It is then important to think about what you’d like to happen to these assets upon your incapacitation or death. For example, would you like to have your Facebook account closed down or memorialised? Is there someone in particular you would like to have access to your iTunes account?
Once you have made the inventory and considered what you would like done with your assets, it is then important to make your wishes legally binding by formalising them in a Will and Enduring Power of Attorney.
The most important part of planning for incapacity is to execute an Enduring Power of Attorney. This document will allow you to appoint someone that you trust to deal with your digital assets effectively and properly in the event you are incapacitated and can no longer control the accounts yourself.
Your Will is the document which addresses how your assets will be dealt with upon your death. Therefore it is important that your Will make provision for and include a clause that will give power to your executor to handle and manage your digital assets in accordance with your wishes and the terms of your Will.
Your executor, being the person you have nominated to administer your estate, should also have access to your inventory of your digital assets. This allows them to know what assets exist and where to locate them. The inventory should remain separate from the Will and should be updated as required.
The concept of ‘digital assets’ is no longer an idea of the future but rather it is very real and present right here and now. Therefore, it is prudent to seek advice from a solicitor in relation to your digital assets and your estate planning needs. A solicitor is best equipped to provide you with appropriate advice on how to best to structure your affairs in order to ensure your digital assets are dealt with effectively in your estate plan. For advice on Wills and Estate matters contact Jason Coluccio or the team at Welden & Coluccio Lawyers.
Most people know they need to have a will, and that it’s a good idea to pre-plan their funerals and make other arrangements because one day, every one of us will die.
But there’s another aspect of planning that needs attention also — your online life — the Federal Trade Commission said Friday
All the digital files, photos, posts and other accounts you leave behind might cause a lot of inconvenience – even fraud or identity theft – for your loved ones to clean up.
Do you really want your Facebook account to outlive you? What will happen with access to your online bank accounts?
Here are a few tips from the FTC to figure out a plan for your online life after death.
- Count your accounts. Make an inventory of your digital life, including accounts for email, social media, blogging, gaming, and cloud storage. Set up a spreadsheet or other file to keep track of each site’s name, URL, your user name, password, your wishes for each, and other information that might be necessary for access. Some of your accounts may involve money – either real-world or online currencies – and may require additional attention. Don’t attach your inventory to your will which becomes a public document after your death.
- Get in the know – now. Many accounts will let you make arrangements now or name someone to manage the account after your death. Research your options.
Who can help? You might want to name a digital executor to handle all these tasks after your death, preferably someone who has experience with online accounts and will understand how to carry out your instructions – or make decisions about issues that you might not have foreseen. You can select a friend or family member to be your digital executor or you can hire a third-party service to help you.
Search “online life after death” or “digital” and “afterlife” or “legacy” or “executor” to learn more.
With an extraordinary concept and an ingenious approach to end-of-life planning, Heavenote’s no-cost digital legacy planning makes life after death free and digital for all.
TUSLA, OK – 04 Feb, 2016 – Heavenote announced Friday its official expansion into the American end-of-life planning market with the introduction of a free membership plan after almost three successful years of paid membership service abroad.
Founded in 2013, the award-winning Oklahoma-based firm specializes in helping customers maintain “digital legacies” – memento message collections stored online – that can be shared after their departure. Messages are then scheduled for posthumous message delivery, an event confirmed by the Heavenote yearly response system or a trusted third-party.
But the firm’s newly introduced basic plan allows members to do all of this for free. First-time and existing members can now enjoy unlimited text and picture messaging for scheduled delivery, and a free 30-second video message to help users maintain more personal connections with their loved ones. The free plan also includes generous amounts of online storage space for safeguarding important documents, photos, files, and other messages one may want to pass on after they’re deceased.
“Our goal is to give people a permanent, comfortable place in the world,” Heavenote CEO said via email. “We want to give [them] peace of mind with no regrets. Death doesn’t have to be the end. And since everyone dies, why not give everyone the opportunity to create memories that will endure forever? A free plan makes this possible for everyone.”
Heavenote also offers a premium membership plan that includes increased file storage space and longer video messages at greater quantities, for a nominal yearly fee. And at the top of Heavenote’s service tier lies the referral-based Ambassador plan, one that rewards customers for sharing the company’s message with friends.
Asked to describe what distinguishes Heavenote from similar companies and what will set the firm apart, the CEO cites their IT expertise, focus on data security, Heavenote’s overall ease of use, and having a noble mission as key to delivering a superior service.
“Our team has years of platform management experience. We’ve worked for large corporations like Citibank and Dell. We’ve been recognized by Google. We know what it takes to make an attractive, user-friendly platform that’s extremely easy to use without needing computer or technical knowledge. But above all, we believe we can change the world with our actions. We genuinely want to make it a better place.”
Heavenote’s FREE digital legacy service is now available in the United States.
An a digital legacy and end-of-life planning firm, Heavenote was founded in February 2013 with a single mission: to give everyone the right of dying with peace of mind. The company provides an automated service in which scheduled text, image, audio and video messages are delivered to their intended recipients after its customers have passed away.
Company Name: Heavenote
Contact Person: Adrianne Knight
Country: United States
When a person dies, friends and relatives must decide whether to delete all the deceased’s data or to ensure the digital survival of the deceased. A huge amount of data and information is collected about people during their lifetimes, and the growth of professional and personal social networks (eg, Linkedin, Facebook, Instagram and Google+) is increasing this phenomenon.
Existing legal void
As the digital era continues, an increasing number of social network user accounts belong to deceased persons. The French data protection authority, the Commission Nationale de l’Informatique et des Libertés (CNIL), has estimated that 1% of all Facebook profiles worldwide (130 million profiles) belong to a deceased person.
During their lifetimes all people have the right to access, modify and delete their data (eg, photos, lifestyle and professional data). However, these rights attach to the person and do not continue when he or she dies.
Unlike inheritance law, which recognises heirs as the continuation of the deceased person, in regard to digital matters the heirs have no right to stop the use of processed data or recover data if the deceased person expressed no last wishes.
Only Article 40 of the Data Protection Act (78-17) deals with the data of deceased persons, and simply provides that “the heirs of a deceased person, providing proof of their identity, may… require the data controller to take the death into account and update the data accordingly”.
Given the challenges posed by digital data and information, in communications of October 29 and 31 2014 the CNIL evoked the balance that must be struck between the right to be forgotten and digital immortality.(1) However, the CNIL highlighted that it was not its role to arbitrate on this issue, and therefore called on the public authorities and internet stakeholders to debate this issue. Some scholars have suggested that inspiration could be drawn from the regime governing the transmission of copyright after death, which allows the transmission of personality rights.(2)
Bill for Digital Republic
In response to this issue, the government has published the Bill for a Digital Republic, which proposes to supplement Article 40 by allowing a person to “set instructions relating to the retention and disclosure of his/her personal data after his/her death”.
Therefore, before people die, they may decide how they “wish their rights under this Act to be exercised after their death”. The instructions may cover all processing of the instructing party’s data or only specific data.
Most importantly, the bill provides that in the absence of instructions, the “heirs may exercise the rights of access, rectification and opposition after his or her death”. Therefore, if the bill is passed, heirs will be allowed to inherit certain personal rights.
Lastly, the bill creates a new obligation for all data hosts, which will have to inform users as to what will happen to their data after they die and allow them to choose whether to pass their data onto a designated third party.
Consequences for economic operators
If the bill is passed, data controllers will have to deal with new constraints and new types of request.
Indeed, even though it is hosts, publishers and digital platforms which will primarily be affected, any data controller may have to deal with requests from trusted third parties or heirs and set up measures to ensure that requests to access, modify or delete reflect the deceased person’s last wishes or the heirs’ wishes. This will not be an easy task, and it is likely that the CNIL will often be called on to intervene in difficult circumstances.
Therefore, estate planning should take these new digital issues into account, and it would be entirely appropriate to address them in wills. As a result, notaries will have to consider these new issues when drafting documents. Users need to ask themselves a very real question about the virtual world: digital oblivion or digital eternity?
For further information on this topic please contact Matthieu Dary or Alexandre Diouf at FIDAL by telephone (+33 1 46 24 30 30) or email (email@example.com or firstname.lastname@example.org). The FIDAL website can be accessed at www.fidal.com.