A recent New York case, Estate of Swezey (NYLJ, 1/17/19 at pp. 23, col. 3) highlights the confusion in the laws of many states regarding the administration and distribution of digital assets at a decedent’s death. In this case, decedent’s executor asked Apple to turn over decedent’s photographs stored […]
Plan forward in your will to your digital self
NEW YORK (Reuters) – In the not-so-olden days of a few years ago, relatives might have sifted through stacks of documents to sort out your affairs after you died. These days, much of your presence in this world is floating around in the cloud: email, online drives, social media. Even your financial accounts are probably paperless at this point.
To give your family access to your accounts after you die, you need to do some work in advance, leaving instructions in your will for everything from access to your Facebook page to how to redeem your cryptocurrency.
“Most estate plans are silent on all this stuff – and that is a big problem,” said Kevin Ruth, head of wealth planning and personal trust for Boston-based Fidelity Investments.
Here are a few tips on how to deal with your digital legacy:
* Write it all down.
Passwords and logins may be all in your head, but they are not in anybody else’s. So do a full accounting of everywhere you might be digitally – Facebook, Instagram, LinkedIn, bank accounts, 401(k) providers, bitcoin exchanges – and document how to get access.
The importance of this hit Houston financial planner Ashley Foster like a sledgehammer around three years ago. The 33-year-old had a close friend from high school who was struck down by aggressive colon cancer, and he watched helplessly as the family struggled to get access to all of his friend’s accounts.
Foster took action to get his own digital life in order – documenting logins and passwords, putting them in a safe deposit box, and giving instructions to loved ones. He counsels his clients to do the same.
How you do that is really about personal preference. If you are the kind of person who uses Post-Its, then use them – just get the information down, said James Lamm, an estate planning and tax attorney with Gray Plant Mooty in Minneapolis.
Nowadays there are online “safes” where you can store codes like this, such as Fidelity’s FidSafe – a service available to everybody, not just the firm’s clients, notes Ruth.
* Appoint a digital executor.
In a traditional will, you name certain people to handle affairs if you pass away or are incapacitated. Same goes for digital property. This could very well be a different person than the one handling your financial or healthcare directives.
If you are drafting a will now, make sure to include these digital issues with the help of an estate planning attorney. If you have an existing will that was drawn up in the past, it is very likely you need to update it, since “almost nobody” was dealing with these issues 10 years ago, advised Lamm.
You should also make sure to back up your information to a laptop or thumb drive, which will make it easier for your representatives to manage than just the cloud. Facebook, for example, has a button to do just that: Under ‘Settings’, click ‘Download a copy of your Facebook data’ at the bottom of General Account Settings.
* Think about your wishes
Would you prefer that your accounts be deleted altogether? Or do you want them to stay up indefinitely as a memorial? These are the kinds of decisions you can make now. On Facebook you can designate a “legacy ,” who can handle some functions of your account, but not all (such as seeing private messages).
Remember that sites are not all alike. Facebook, in particular, is known to be militant about never allowing anyone to access to your personal account, which has led to questions of legality that are still before the courts, said Lamm.
*Do not be cryptic about crypto
Imagine you are a “bitcoin millionaire” who passes away unexpectedly: It can be like losing a winning lottery ticket. “Sometimes people know that their loved ones owned bitcoin, but they have no idea where it was purchased or how to access it,” says Fidelity’s Ruth. “And we can be talking about a significant amount of money.”
Bitcoins come with a “private key,” or a secret number that allows the currency to be accessed and transferred. Bitcoin exchanges, for their part, have their own usernames and passcodes on top of that. Leave all this information behind, said Lamm – or your crypto bonanza could be gone forever.
Editing by Beth Pinsker; Editing by Lisa Shumaker
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.