What happens to our online identities when we die?

What happens to our online identities when we die?

What happens to our online identities when we die?

Click here to view original web page at What happens to our online identities when we die?

Hayley Atwell in the Black Mirror episode Be Right Back.

Esther Earl never meant to tweet after she died. On 25 August 2010, the 16-year-old internet vlogger died after a four-year battle with thyroid cancer. In her early teens, Esther had gained a loyal following online, where she posted about her love of Harry Potter, and her illness. Then, on 18 February 2011 – six months after her death – Esther posted a message on her Twitter account, @crazycrayon.

“It’s currently Friday, January 14 of the year 2010. just wanted to say: I seriously hope that I’m alive when this posts,” she wrote, adding an emoji of a smiling face in sunglasses. Her mother, Lori Earl from Massachusetts, tells me Esther’s online friends were “freaked out” by the tweet.

“I’d say they found her tweet jarring because it was unexpected,” she says. Earl doesn’t know which service her daughter used to schedule the tweet a year in advance, but believes it was intended for herself, not for loved ones after her death. “She hoped she would receive her own messages … [it showed] her hopes and longings to still be living, to hold on to life.”

Although Esther did not intend her tweet to be a posthumous message for her family, a host of services now encourage people to plan their online afterlives. Want to post on social media and communicate with your friends after death? There are lots of apps for that! Replika and Eternime are artificially intelligent chatbots that can imitate your speech for loved ones after you die; GoneNotGone enables you to send emails from the grave; and DeadSocial’s “goodbye tool” allows you to “tell your friends and family that you have died”. In season two, episode one of Black Mirror, a young woman recreates her dead boyfriend as an artificial intelligence – what was once the subject of a dystopian 44-minute fantasy is nearing reality.

Esther Earl at home in 2010 … before she died, she arranged for emails to be sent to her imagined future self.
Esther Earl at home in 2010 … before she died, she arranged for emails to be sent to her imagined future self. Photograph: Boston Globe via Getty Images

But although Charlie Brooker portrayed the digital afterlife as something twisted, in reality online legacies can be comforting for the bereaved. Esther Earl used a service called FutureMe to send emails to herself, stating that her parents should read them if she died. Three months after Esther’s death, her mother received one of these emails. “They were seismically powerful,” she says. “That letter made us weep, but also brought us great comfort – I think because of its intentionality, the fact that she was thinking about her future, the clarity with which she accepted who she was and who she hoped to become.”

Because of the power of Esther’s messages, Earl knows that if she were dying, she would also schedule emails for her husband and children. “I think I would be very clear about how many messages I had written and when to expect them,” she adds, noting they could cause anxiety for relatives and friends otherwise.

Yet while the terminally ill ponder their digital legacies, the majority of us do not. In November 2018, a YouGov survey found that only 7% of people want their social media accounts to remain online after they die, yet it is estimated that by 2100, there could be 4.9bn dead users on Facebook alone. Planning your digital death is not really about scheduling status updates for loved ones or building an AI avatar. In practice, it is a series of unglamorous decisions about deleting your Facebook, Twitter and Netflix accounts; protecting your email against hackers; bestowing your music library to your friends; allowing your family to download photos from your cloud; and ensuring that your online secrets remain hidden in their digital alcoves.

In Be Right Back, a young woman recreates her dead boyfriend as an artificial intelligence.
In Be Right Back, a young woman recreates her dead boyfriend as an artificial intelligence. Photograph: Channel 4

“We should think really carefully about anything we’re entrusting or storing on any digital platform,” says Dr Elaine Kasket, a psychologist and author of All the Ghosts in the Machine: Illusions of Immortality in the Digital Age. “If our digital stuff were like our material stuff, we would all look like extreme hoarders.” Kasket says it is naive to assume that our online lives die with us. In practice, your hoard of digital data can cause endless complications for loved ones, particularly when they don’t have access to your passwords.

“I cursed my father every step of the way,” says Richard, a 34-year-old engineer from Ontario who was made executor of his father’s estate four years ago. Although Richard’s father left him a list of passwords, not one remained valid by the time of his death. Richard couldn’t access his father’s online government accounts, his email (to inform his contacts about the funeral), or even log on to his computer. For privacy reasons, Microsoft refused to help Richard access his father’s computer. “Because of that experience I will never call Microsoft again,” he says.

Our devices capture so much stuff, we don’t think about the consequences for when we’re not here

Compare this with the experience of Jan-Ole Lincke, a 24-year-old pharmaceutical worker from Hamburg whose father left up-to-date passwords behind on a sheet of paper when he died two years ago. “Getting access was thankfully very easy,” says Lincke, who was able to download pictures from his father’s Google profile, shut down his email to prevent hacking, and delete credit card details from his Amazon account. “It definitely made me think about my own [digital legacy],” says Lincke, who has now written his passwords down.

Yet despite growing awareness about the data we leave behind, very few of us are doing anything about it. In 2013, a Brighton-based company called Cirrus Legacy made headlines after it began allowing people to securely leave behind passwords for a nominated loved one. Yet the Cirrus website is now defunct, and the Guardian was unable to reach its founder for comment. Clarkson Wright & Jakes Solicitors, a Kent-based law firm that offered the Cirrus service to its clients, says the option was never popular.

“We’ve been aware for quite a period now that the big issue for the next generation is digital footprints,” says Jeremy Wilson, head of the wills and estates team at CWJ. “Cirrus made sense and ticked a lot of boxes but, to be honest, not one client has taken us up on it.”

Wilson also notes that people don’t know about the laws surrounding digital assets such as the music, movies and games they have downloaded. While many of us assume we own our iTunes library or collection of PlayStation games, in fact, most digital downloads are only licensed to us, and this licence ends when we die.

What we want to do and what the law allows us to do with our digital legacy can therefore be very different things. Yet at present it is not the law that dominates our decisions about digital death. “Regulation is always really slow to keep up with technology,” says Kasket. “That means that platforms and corporations like Facebook end up writing the rules.”

Andrew Scott stars in the new Black Mirror episode Smithereens, which explores our digital dependency.
Andrew Scott stars in the new Black Mirror episode Smithereens, which explores our digital dependency. Photograph: Netflix / Black Mirror

In 2012, a 15-year-old German girl died after being hit by a subway train in Berlin. Although the girl had given her parents her online passwords, they were unable to access her Facebook account because it had been “memorialised” by the social network. Since October 2009, Facebook has allowed profiles to be transformed into “memorial pages” that exist in perpetuity. No one can then log into the account or update it, and it remains frozen as a place for loved ones to share their grief.

The girl’s parents sued Facebook for access to her account – they hoped to use it to determine whether her death was suicide. They originally lost the case, although a German court later granted the parents permission to get into her account, six years after her death.

“I find it concerning that any big tech company that hasn’t really shown itself to be the most honest, transparent or ethical organisation is writing the rulebook for how we should grieve, and making moral judgments about who should or shouldn’t have access to sensitive personal data,” says Kasket. The author is concerned with how Facebook uses the data of the dead for profit, arguing that living users keep their Facebook accounts because they don’t want to be “locked out of the cemetery” and lose access to relatives’ memorialised pages. As a psychologist, she is also concerned that Facebook is dictating our grief.

“Facebook created memorial profiles to prevent what they called ‘pain points’, like getting birthday reminders for a deceased person,” she says. “But one of the mothers I spoke to for my book was upset when her daughter’s profile was memorialised and she stopped getting these reminders. She was like, ‘This is my daughter, I gave birth to her, it’s still her birthday’.”

While Facebook users now have the option to appoint a “legacy contact” who can manage or delete their profile after death, Kasket is concerned that there are very few personalisation options when it comes to things like birthday reminders, or whether strangers can post on your wall. “The individuality and the idiosyncrasy of grief will flummox Facebook every time in its attempts to find a one-size-fits-all solution,” she says.

Pain points … should we allow loved ones to curate our legacy, or create ‘memorial pages’?
Pain points … should we allow loved ones to curate our legacy, or create ‘memorial pages’? Photograph: Yui Mok/PA

Matthew Helm, a 27-year-old technical analyst from Minnesota, says his mother’s Facebook profile compounded his grief after she died four years ago. “The first year was the most difficult,” says Helm, who felt some relatives posted about their grief on his mother’s wall in order to get attention. “In the beginning I definitely wished I could just wipe it all.” Helm hoped to delete the profile but was unable to access his mother’s account. He did not ask the tech giant to delete the profile because he didn’t want to give it his mother’s death certificate.

Conversely, Stephanie Nimmo, a 50-year-old writer from Wimbledon, embraced the chance to become her husband’s legacy contact after he died of bowel cancer in December 2015. “My husband and I shared a lot of information on Facebook. It almost became a bit of an online diary,” she says. “I didn’t want to lose that.” She is pleased people continue to post on her husband’s wall, and enjoys tagging him in posts about their children’s achievements. “I’m not being maudlin or creating a shrine, just acknowledging that their dad lived and he played a role in their lives,” she explains.

Nimmo is now passionate about encouraging people to plan their digital legacies. Her husband also left her passwords for his Reddit, Twitter, Google and online banking accounts. He also deleted Facebook messages he didn’t want his wife to see. “Even in a marriage there are certain things you wouldn’t want your other half to see because it’s private,” says Nimmo. “It worries me a little that if something happened to me, there are things I wouldn’t want my kids to see.”

When it comes to the choice between allowing relatives access to your accounts or letting a social media corporation use your data indefinitely after your death, privacy is a fundamental issue. Although the former makes us sweat, the latter is arguably more dystopian. Dr Edina Harbinja is a law lecturer at Aston University, who argues that we should all legally be entitled to postmortem privacy.

If we don’t start making decisions about our digital deaths, then someone else will be making them for us

“The deceased should have the right to control what happens to their personal data and online identities when they die,” she says, explaining that the Data Protection Act 2018 defines “personal data” as relating only to living people. Harbinja says this is problematic because rules such as the EU’s General Data Protection Regulation don’t apply to the dead, and because there are no provisions that allow us to pass on our online data in wills. “There can be many issues because we don’t know what would happen if someone is a legacy contact on Facebook, but the next of kin want access.” For example, if you decide you want your friend to delete your Facebook pictures after you die, your husband could legally challenge this. “There could be potential court cases.”

Kasket says people “don’t realise how much preparation they need to do in order to make plans that are actually able to be carried out”. It is clear that if we don’t start making decisions about our digital deaths, then someone else will be making them for us. “What one person craves is what another person is horrified about,” says Kasket.

How close are we to a Black Mirror-style digital afterlife?

Read more

Esther Earl continued to tweet for another year after her death. Automated posts from the music website Last.fm updated her followers about the music she enjoyed. There is no way to predict the problems we will leave online when we die; Lori Earl would never have thought of revoking Last.fm’s permissions to post on her daughter’s page before she died. “We would have turned off the posts if we had been able to,” she says.

Kasket says “the fundamental message” is to think about how much you store digitally. “Our devices, without us even having to try, capture so much stuff,” she says. “We don’t think about the consequences for when we’re not here any more.”

• Black Mirror season 5 launches on Netflix on 5 June.

Images

What happens to our online identities when we die?

What happens to our online identities when we die?

What happens to our online identities when we die?

Click here to view original web page at What happens to our online identities when we die?

Hayley Atwell in the Black Mirror episode Be Right Back.

Esther Earl never meant to tweet after she died. On 25 August 2010, the 16-year-old internet vlogger died after a four-year battle with thyroid cancer. In her early teens, Esther had gained a loyal following online, where she posted about her love of Harry Potter, and her illness. Then, on 18 February 2011 – six months after her death – Esther posted a message on her Twitter account, @crazycrayon.

“It’s currently Friday, January 14 of the year 2010. just wanted to say: I seriously hope that I’m alive when this posts,” she wrote, adding an emoji of a smiling face in sunglasses. Her mother, Lori Earl from Massachusetts, tells me Esther’s online friends were “freaked out” by the tweet.

“I’d say they found her tweet jarring because it was unexpected,” she says. Earl doesn’t know which service her daughter used to schedule the tweet a year in advance, but believes it was intended for herself, not for loved ones after her death. “She hoped she would receive her own messages … [it showed] her hopes and longings to still be living, to hold on to life.”

Although Esther did not intend her tweet to be a posthumous message for her family, a host of services now encourage people to plan their online afterlives. Want to post on social media and communicate with your friends after death? There are lots of apps for that! Replika and Eternime are artificially intelligent chatbots that can imitate your speech for loved ones after you die; GoneNotGone enables you to send emails from the grave; and DeadSocial’s “goodbye tool” allows you to “tell your friends and family that you have died”. In season two, episode one of Black Mirror, a young woman recreates her dead boyfriend as an artificial intelligence – what was once the subject of a dystopian 44-minute fantasy is nearing reality.

Esther Earl at home in 2010 … before she died, she arranged for emails to be sent to her imagined future self.
Esther Earl at home in 2010 … before she died, she arranged for emails to be sent to her imagined future self. Photograph: Boston Globe via Getty Images

But although Charlie Brooker portrayed the digital afterlife as something twisted, in reality online legacies can be comforting for the bereaved. Esther Earl used a service called FutureMe to send emails to herself, stating that her parents should read them if she died. Three months after Esther’s death, her mother received one of these emails. “They were seismically powerful,” she says. “That letter made us weep, but also brought us great comfort – I think because of its intentionality, the fact that she was thinking about her future, the clarity with which she accepted who she was and who she hoped to become.”

Because of the power of Esther’s messages, Earl knows that if she were dying, she would also schedule emails for her husband and children. “I think I would be very clear about how many messages I had written and when to expect them,” she adds, noting they could cause anxiety for relatives and friends otherwise.

Yet while the terminally ill ponder their digital legacies, the majority of us do not. In November 2018, a YouGov survey found that only 7% of people want their social media accounts to remain online after they die, yet it is estimated that by 2100, there could be 4.9bn dead users on Facebook alone. Planning your digital death is not really about scheduling status updates for loved ones or building an AI avatar. In practice, it is a series of unglamorous decisions about deleting your Facebook, Twitter and Netflix accounts; protecting your email against hackers; bestowing your music library to your friends; allowing your family to download photos from your cloud; and ensuring that your online secrets remain hidden in their digital alcoves.

In Be Right Back, a young woman recreates her dead boyfriend as an artificial intelligence.
In Be Right Back, a young woman recreates her dead boyfriend as an artificial intelligence. Photograph: Channel 4

“We should think really carefully about anything we’re entrusting or storing on any digital platform,” says Dr Elaine Kasket, a psychologist and author of All the Ghosts in the Machine: Illusions of Immortality in the Digital Age. “If our digital stuff were like our material stuff, we would all look like extreme hoarders.” Kasket says it is naive to assume that our online lives die with us. In practice, your hoard of digital data can cause endless complications for loved ones, particularly when they don’t have access to your passwords.

“I cursed my father every step of the way,” says Richard, a 34-year-old engineer from Ontario who was made executor of his father’s estate four years ago. Although Richard’s father left him a list of passwords, not one remained valid by the time of his death. Richard couldn’t access his father’s online government accounts, his email (to inform his contacts about the funeral), or even log on to his computer. For privacy reasons, Microsoft refused to help Richard access his father’s computer. “Because of that experience I will never call Microsoft again,” he says.

Our devices capture so much stuff, we don’t think about the consequences for when we’re not here

Compare this with the experience of Jan-Ole Lincke, a 24-year-old pharmaceutical worker from Hamburg whose father left up-to-date passwords behind on a sheet of paper when he died two years ago. “Getting access was thankfully very easy,” says Lincke, who was able to download pictures from his father’s Google profile, shut down his email to prevent hacking, and delete credit card details from his Amazon account. “It definitely made me think about my own [digital legacy],” says Lincke, who has now written his passwords down.

Yet despite growing awareness about the data we leave behind, very few of us are doing anything about it. In 2013, a Brighton-based company called Cirrus Legacy made headlines after it began allowing people to securely leave behind passwords for a nominated loved one. Yet the Cirrus website is now defunct, and the Guardian was unable to reach its founder for comment. Clarkson Wright & Jakes Solicitors, a Kent-based law firm that offered the Cirrus service to its clients, says the option was never popular.

“We’ve been aware for quite a period now that the big issue for the next generation is digital footprints,” says Jeremy Wilson, head of the wills and estates team at CWJ. “Cirrus made sense and ticked a lot of boxes but, to be honest, not one client has taken us up on it.”

Wilson also notes that people don’t know about the laws surrounding digital assets such as the music, movies and games they have downloaded. While many of us assume we own our iTunes library or collection of PlayStation games, in fact, most digital downloads are only licensed to us, and this licence ends when we die.

What we want to do and what the law allows us to do with our digital legacy can therefore be very different things. Yet at present it is not the law that dominates our decisions about digital death. “Regulation is always really slow to keep up with technology,” says Kasket. “That means that platforms and corporations like Facebook end up writing the rules.”

Andrew Scott stars in the new Black Mirror episode Smithereens, which explores our digital dependency.
Andrew Scott stars in the new Black Mirror episode Smithereens, which explores our digital dependency. Photograph: Netflix / Black Mirror

In 2012, a 15-year-old German girl died after being hit by a subway train in Berlin. Although the girl had given her parents her online passwords, they were unable to access her Facebook account because it had been “memorialised” by the social network. Since October 2009, Facebook has allowed profiles to be transformed into “memorial pages” that exist in perpetuity. No one can then log into the account or update it, and it remains frozen as a place for loved ones to share their grief.

The girl’s parents sued Facebook for access to her account – they hoped to use it to determine whether her death was suicide. They originally lost the case, although a German court later granted the parents permission to get into her account, six years after her death.

“I find it concerning that any big tech company that hasn’t really shown itself to be the most honest, transparent or ethical organisation is writing the rulebook for how we should grieve, and making moral judgments about who should or shouldn’t have access to sensitive personal data,” says Kasket. The author is concerned with how Facebook uses the data of the dead for profit, arguing that living users keep their Facebook accounts because they don’t want to be “locked out of the cemetery” and lose access to relatives’ memorialised pages. As a psychologist, she is also concerned that Facebook is dictating our grief.

“Facebook created memorial profiles to prevent what they called ‘pain points’, like getting birthday reminders for a deceased person,” she says. “But one of the mothers I spoke to for my book was upset when her daughter’s profile was memorialised and she stopped getting these reminders. She was like, ‘This is my daughter, I gave birth to her, it’s still her birthday’.”

While Facebook users now have the option to appoint a “legacy contact” who can manage or delete their profile after death, Kasket is concerned that there are very few personalisation options when it comes to things like birthday reminders, or whether strangers can post on your wall. “The individuality and the idiosyncrasy of grief will flummox Facebook every time in its attempts to find a one-size-fits-all solution,” she says.

Pain points … should we allow loved ones to curate our legacy, or create ‘memorial pages’?
Pain points … should we allow loved ones to curate our legacy, or create ‘memorial pages’? Photograph: Yui Mok/PA

Matthew Helm, a 27-year-old technical analyst from Minnesota, says his mother’s Facebook profile compounded his grief after she died four years ago. “The first year was the most difficult,” says Helm, who felt some relatives posted about their grief on his mother’s wall in order to get attention. “In the beginning I definitely wished I could just wipe it all.” Helm hoped to delete the profile but was unable to access his mother’s account. He did not ask the tech giant to delete the profile because he didn’t want to give it his mother’s death certificate.

Conversely, Stephanie Nimmo, a 50-year-old writer from Wimbledon, embraced the chance to become her husband’s legacy contact after he died of bowel cancer in December 2015. “My husband and I shared a lot of information on Facebook. It almost became a bit of an online diary,” she says. “I didn’t want to lose that.” She is pleased people continue to post on her husband’s wall, and enjoys tagging him in posts about their children’s achievements. “I’m not being maudlin or creating a shrine, just acknowledging that their dad lived and he played a role in their lives,” she explains.

Nimmo is now passionate about encouraging people to plan their digital legacies. Her husband also left her passwords for his Reddit, Twitter, Google and online banking accounts. He also deleted Facebook messages he didn’t want his wife to see. “Even in a marriage there are certain things you wouldn’t want your other half to see because it’s private,” says Nimmo. “It worries me a little that if something happened to me, there are things I wouldn’t want my kids to see.”

When it comes to the choice between allowing relatives access to your accounts or letting a social media corporation use your data indefinitely after your death, privacy is a fundamental issue. Although the former makes us sweat, the latter is arguably more dystopian. Dr Edinja Harbinja is a law lecturer at the University of Hertfordshire, who argues that we should all legally be entitled to postmortem privacy.

If we don’t start making decisions about our digital deaths, then someone else will be making them for us

“The deceased should have the right to control what happens to their personal data and online identities when they die,” she says, explaining that the Data Protection Act 2018 defines “personal data” as relating only to living people. Harbinja says this is problematic because rules such as the EU’s General Data Protection Regulation don’t apply to the dead, and because there are no provisions that allow us to pass on our online data in wills. “There can be many issues because we don’t know what would happen if someone is a legacy contact on Facebook, but the next of kin want access.” For example, if you decide you want your friend to delete your Facebook pictures after you die, your husband could legally challenge this. “There could be potential court cases.”

Kasket says people “don’t realise how much preparation they need to do in order to make plans that are actually able to be carried out”. It is clear that if we don’t start making decisions about our digital deaths, then someone else will be making them for us. “What one person craves is what another person is horrified about,” says Kasket.

How close are we to a Black Mirror-style digital afterlife?

Read more

Esther Earl continued to tweet for another year after her death. Automated posts from the music website Last.fm updated her followers about the music she enjoyed. There is no way to predict the problems we will leave online when we die; Lori Earl would never have thought of revoking Last.fm’s permissions to post on her daughter’s page before she died. “We would have turned off the posts if we had been able to,” she says.

Kasket says “the fundamental message” is to think about how much you store digitally. “Our devices, without us even having to try, capture so much stuff,” she says. “We don’t think about the consequences for when we’re not here any more.”

• Black Mirror season 5 launches on Netflix on 5 June.

Images

Lost on the internet: why online banking has put our inheritance at risk

Lost on the internet: why online banking has put our inheritance at risk

Lost on the internet: why online banking has put our inheritance at risk

Click here to view original web page at Lost on the internet: why online banking has put our inheritance at risk

Lawyers are warning our money could be lost forever because of family secrecy and outdated laws.

Lesley Davis is a modern-day treasure hunter.

That’s not her job title, of course: on paper, she’s a partner at law firm Shakespeare Martineau in Birmingham.

Davis is a specialist in wills and succession and is tasked with hunting down the property of the dead, to pass onto their descendants and relatives.

A couple of years ago, she encountered an unusual case.

When searching for the assets of a recently deceased man, Davis was tipped off by the deceased’s friends that he had an online gambling account he hadn’t disclosed to his wife.

There was money in the account, but, Davis explains, the man’s relatives ran into a serious problem.

“When you tick the terms and conditions on any of these sites – I’m convinced most of us don’t read them properly – it means if you have a balance and you don’t claim it within a certain period of time, they take it back.”

As the account hadn’t been mentioned in the will, and there were no physical documents to show it existed, Davis wasn’t made aware of it until several months had passed.

By that point, the time limit had passed and the gambling company legally reclaimed the money, she recalls.

“That was worth tens of thousands of pounds.”

You can find our full guide to passing on wealth here

£850 million collecting dust

Few of us have online gambling accounts, but almost all of us have bank accounts.

There’s £850 million lying unclaimed in lost bank accounts, the Money Advice Service estimates, so much so that the Government took out £330 million last year to spend on good causes.

The amount of unclaimed money about to spiral is in part due to missing ‘digital legacies’ that Davis says makes it harder for lawyers like her to find out what recently deceased people owned.

“I qualified in this area in 1991, when everything you put down on pen and paper was it: you’d write a will and everything in your will was all the assets in the estate.”

In the past, a dusty box in the attic could reveal a treasure trove of cash, bank account statements and share certificates.

Wealth in the attic (image: Shutterstock)

Today, it’s possible to do all your banking and investing online and have almost no physical documents to show for it. That’s before you start to consider cryptocurrency wallets, gambling accounts and music collections.

The chances of relatives or lawyers bumping into these assets are close to nought, Davis warns.

“If you die and you didn’t physically identify an asset, how do you know your loved one will receive it?”

Why I’d be glad if I never received a paper bill again

Damned if you do

Many of us use online banking because it’s convenient: you simply log on to your computer.

You could give your lawyer your password, but although they’re bound by confidentiality, you could still be breaking your bank’s rules.

“It’s a nightmare”, says Davis. “As lawyers we’ve got to be very careful because we’ve got GDPR to think about; we can’t keep data on individuals beyond a certain length of time.

“They [the clients] shouldn’t be giving their passwords or PIN to anyone, but if they don’t, how do you pass on those assets, after they die, to the person who should have them?”

The 1990 Computer Misuse Act makes it illegal to access someone else’s digital information – even after death – unless you’ve been given permission in advance.

You shouldn't give anyone else your password (image: Shutterstock)

The problem, explains Davis, is that “it’s very difficult to get authority or consent from someone who’s dead. It has to be an understanding that’s given in advance. The problem of giving consent in advance is whether it has a shelf life.”

A future falling out or divorce could make you bitterly regret giving someone your bank details.

Davis also warns that a lack of paper records could put the executors of wills at serious risk as they will be liable for any debts not paid, even if they aren’t aware those debts existed.

“Executors are left in a terrible position and fewer and fewer people will be willing to act as executors. It’s a thankless task.”

Read our guide on how to be an executor here

Death Notification Service

In response to our increasingly paperless lives, last year a group of banks launched the Death Notification Service.

Like the Government’s Tell Us Once service, which notifies different departments such as HMRC and local councils of a death, the Death Notification Service saves you calling around various banks.

Instead, you enter their name, date of birth and death, address and Death Certificate number on the website and the banks will contact you within 10 days to confirm if the deceased had an account with them.

The service should not, however, be considered a cure-all.

“We constantly see things that haven’t been put on the Death Notification Service”, warns Davis.

Only a handful of firms are signed up to the service, most of which are high street banks and only one investment firm, Scottish Widows.

For other institutions, the executor will need to contact them directly.

Just having the Death Certificate isn’t enough; it’s seen as too easy to get, so you’ll need evidence that you’re the appointed executor of the will.

What to do when a family member dies: taxes, probate and inheritance explained

Going back to basics

“The law is very much playing catch-up”, Davis admits.

Laws around inheritance are being looked at, she says, but will likely require major court cases involving hidden wealth or debts to move legislation forward.

In the meantime, she and her clients are going ‘back to basics’.

That means printing off documents relating to all your assets and putting them in a locked drawer in your study, together with passwords that your family could work out, such as a birthday.

Print off your financial documents (image: Shutterstock)

If you change accounts or passwords, you’ll need to add sticky notes and regularly provide written permission to trusted people to access your accounts in the event of your death.

Unfortunately, the situation could get harder before it gets easier.

Faced with rampant fraud, financial firms encourage customers to change passwords regularly and sometimes ask they are backed up by security questions, fingerprints or even voice recognition software.

To make matters worse, your life savings could soon be hidden within your phone.

App-only bank Monzo has 1.78 million customers with recent figures showing thousands more switching, whilst Atom Bank and Tandem Bank are attracting long-term savers.

Monzo is not currently a member of the Death Notification Service. Smaller app-based banks or investment platforms, which are often just start-ups with a couple of employees, could be difficult to track down or deal with.

That’s why, until notification services cover all financial companies, it’s vital you keep paper records of your own digital legacy, Davis advises.

“You might have wanted to pass it onto your children to pay for university or to buy a house; that’s money you’ve worked hard to collect.

“If it’s not identified it just sits there.”

Putting your affairs in order: wills, power of attorney and paperwork explained

How to protect your digital legacy

We talked to Lesley Davis from Shakespeare Martineau and Sarah Coles from investment platform Hargreaves Lansdown on the best ways to protect your digital legacy.

Make a will

55% of us don’t even have a will, let alone information about where to find our assets.

If you’re over 55 it’s possible to get a will draw up for free by a solicitor, in return for charitable donations.

As Davis explains, you should take care with the wording: leaving a beneficiary your Barclays account won’t work if you later switched to Santander.

Hargreaves Lansdown’s Coles suggests you should also draw up an assets register and keep this in hardcopy with your will.

Set an annual calendar reminder

You can check if any passwords have changed or new accounts have been set up and update your hard copy records accordingly.

Consolidate accounts

According to Coles, consolidating accounts can “not just to make life simpler after your death, but make things easier for yourself now.”

It’s also an opportunity to ditch uncompetitive accounts and you can involve your family in the process.

Joint account

If you have a joint bank account, your partner will be able to pay bills and access money straight away, says Davis.

There can be serious downsides to joint accounts so you should think carefully before setting one up.

Power of Attorney

You could give someone Power of Attorney so they can access your online accounts before you die.

However, banks are unlikely to work with them until you have already lost capacity, warns Davis.

“They fight against it, understandably: they don’t want people rocking up with other people’s passwords.”

Useful websites

Death Notification Service – free service to inform member banks of a death and identify an individual’s accounts.

MyLostAccount – free service to find money with bank accounts, building societies and NS&I.

National Will Register – paid-for service that can search for wills.

Pension Tracing Service – a Government service to find unclaimed pensions.

Tell Us Once – a Government service to contact departments including HMRC, Department for Work and Pensions, DVLA and the local council.

The forgotten assets: Protecting your client's digital assets at death

The forgotten assets: Protecting your client’s digital assets at death

The forgotten assets: Protecting your client’s digital assets at death

Click here to view original web page at The forgotten assets: Protecting your client’s digital assets at death

The forgotten assets: Protecting your client's digital assets at death

Digital technology is ubiquitous; from the advent of the elusive “Cloud” to online banking accounts, social media accounts, and mobile apps we engage multiple forms of digital technology daily. With that technology, “[w]e’re accumulating far more digital records in our lives than we are physical ones.”[2] Indeed, on average, we have over $35,000 worth of assets stored in online financial institutions and in our electronic devices.[3] These are the often forgotten assets that fiduciaries confront, sometimes with substantial road blocks to their access.

Take, for instance, the hypothetical 60-year-old who unexpectedly dies. His personal representative attempts to marshal his assets but discovers that all of his account statements were produced and transmitted electronically by email. Even the decedent’s tax returns, which would provide valuable information as to the location of the decedent’s accounts, were produced electronically and filed online. The personal representative has no access to the decedent’s email username and password or any other account for that matter. Family members would like access to the decedent’s social media accounts to preserve photographs which may not be available elsewhere. Perhaps the decedent has an eBay account, website, or other online business that requires action. How then, does the fiduciary fulfill his role to account for the assets of the decedent and attend to the needs of the family?

Many website providers such as Apple, Facebook, Yahoo, Google, and Twitter have Terms of Service Agreements applicable to users which typically state that those providers will not issue login and password information to third parties including family members of a person who has died nor is the accounts’ ownership transferable. Apple appears, by far, the most restrictive of the providers, noting in its iCloud Terms of Service that “any rights to your Apple ID or Content within your Account terminate upon your death.” Other service providers have a gentler approach:

  • Facebook will not provide login information but will honor requests by family members to have the decedent’s page removed or turned into a memorial page;
  • Yahoo does not allow access to the account, citing to its agreement with the user in the TOS, but does have a process by which the account may be closed and deleted for privacy;
  • Microsoft now has a “Next of Kin” process which permits the content of emails, their attachments, address book, to be disclosed after an authentication process; and
  • Google has added an “Inactive Account Manager” tool that allows the user to set a time frame for destruction or transfer of content after the user ceases to use Google due to death or incapacity.

Thus, a fiduciary is at the mercy of these providers and their policies with respect to the release of the content of data in the Cloud, photographs, emails, attachments and contact lists.

In 2015, as an attempt to quell the concerns of fiduciaries and provide some clarity and uniformity among the states, the Uniform Law Commission (ULC) created the Revised Uniform Fiduciary Access to Digital Assets Act (Revised UFADAA). “The act allows fiduciaries to manage digital property like computer files, web domains, and virtual currency, but restricts a fiduciary’s access to electronic communications such as email, text messages, and social media accounts unless the original user consented in a will, trust, power of attorney, or other record.”[4] In addition, the act permits users to consent to disclosure of digital content by an “online tool” offered by the service provider, termed a “custodian” in the act. In the absence of any direction from the user, the TOS agreement for the user’s account will determine whether a fiduciary may access the user’s digital assets. In the last six months, the Revised UFADAA has been on the legislative dockets of 31 states with 19 of those states enacting the legislation. Currently, Ohio has not enacted or introduced this uniform legislation, although the legislation is anticipated to be introduced during this legislative session.

So what is the estate planner to do? The first step is to identify what constitutes a “digital asset” and inform clients that they must be included in the estate planning process. Typically, “digital assets” fall under four categories: personal, social media, financial, and business. Calling attention to a client’s digital assets and requesting a client to catalog all of his or her online accounts is the starting point.

Next, clients must decide what privacy choices they wish to make. The jury is still out in states not enacting the Revised UFADAA as to whether deference will be given to an account holder’s privacy choices as expressed in a document over those in a TOS agreement. As noted, the Revised UFADAA prioritizes an account-holder’s privacy preference in legal documents over the TOS agreements containing boilerplate prohibitions of non-disclosure. That said, it is best to err on the side of express language in a document authorizing the fiduciary to access digital assets.[5] In combination with this express language, a “Letter of Instruction” to the fiduciary specifying the client’s desires as to which accounts to delete and what content of those accounts the user does or does not want disclosed adds clarity.

In addition to including access to digital assets in estate planning documents, an emerging trend among estate planners is to utilize trusts to attempt to preserve and protect digital assets. The creation of “digital asset protection trusts” (DAP Trusts) to place existing digital property into a trust for the use of the trust beneficiaries.[6] The theory behind such trusts is that digital content that are purchased as licenses may be transferred to a revocable trust wherein the trustee has the authority to manage the assets on behalf of the beneficiaries according to the client’s instructions. Whether such trusts are valid has yet to be fleshed out and there are no reported cases discussing DAP Trusts.

With the ever-changing digital environment, the need for estate planners to recognize the new developments in digital asset planning and prepare their clients for such planning is crucial and will continue to be a developing area of the law for some time. The attempt at a uniform law in the Revised UFADAA ensures that fiduciaries have access to digital assets so they may properly administer an estate or trust and ensures that validly drafted powers of attorney apply to digital assets. However, with some additional steps, planners can ensure in their drafting that fiduciaries have access to a client’s digital assets.

Endnotes

[1] Lori L. Kuchmay, J.D., LL.M. (Estate Planning) Candidate, December 2016, The John Marshall Law School, Chicago, Illinois, is a Career Law Clerk for the Honorable William C. Lee, District Judge, United States District Court for the Northern District of Indiana. She is licensed to practice in both Ohio and Indiana.

[2] Evan Carroll, http://www.bbc.com/news/technology-24380211.

[3] https://blogs.mcafee.com/consumer/digital-assets/.

[4] http://uniformlaws.org/Act.aspx?title=Fiduciary Access to Digital Assets Act, Revised (2015).

[5] Sample language to include in documents can be found at http://www.thedigitalbeyond.com/sample-language.

[6] Joseph M. Mentreck, Estate Planning in a Digital World, 19 Prob. L.J. Ohio 195 (2009); see also, Gerry W. Beyer, Estate Planning in the Digital Age (2013).

Who inherits your iTunes library?

Digital assets in wills

Digital assets in wills

Click here to view original web page at Digital assets in wills

The use of digital platforms such as online banking, Paypal, gaming accounts, Bitcoin accounts, cloud accounts to store photographs, and social media accounts such as Facebook and Instagram continues to grow and is creating a new category of personal property – a ‘digital asset’ which is broadly defined as anything that you may own or have rights to that exists online or on a hard storage device.

Many of these digital assets have financial or sentimental value and people must ensure that their personal representatives know about the assets and can access them to administer their estates on their deaths.

The current situation for digital asset holders

Currently, English law does not adequately deal with what happens to these assets on the death of the account holder. The duties of the Internet Service Providers (ISPs) post death, as the custodians of the assets, are not clear. Further complicating matters is the fact that many of the content providers’ servers are based outside the UK, so there is nothing to compel the content providers to give personal representatives access to the assets and the area could become entrenched in conflicts of international succession laws.

The main basis for the content providers refusing access to digital assets is that in most cases, the underlying content of the digital asset is not owned by the individual. The view of most ISPs is that the service that the individual has purchased is merely a personal, non-transferable licence, which is specific to the deceased individual and allows them to use the content during their lifetime. A typical example: music purchased on iTunes cannot be transferred by gift or on death.

Each content providers’ terms and conditions will dictate what happens to those assets on the death of the account holder, and how much access the personal representatives will have in order to administer that asset. Most of these terms and conditions forbid the sharing of any online content, such as by way of a bequest in a will.

However, for those digital assets which are capable of being bequeathed in a will, the potential for loss to an estate if they are overlooked means that it is crucial for people to consider what will happen to them on their death, and whether their personal representatives will even have knowledge of them. Typically, individual assets are not be specified in a will, and personal representatives rely on a paper trail or their knowledge of the deceased’s assets in order to administer the estate.

Digital assets, which could have enormous value, are easier to overlook. For example, the Bitcoin, a virtual asset that can have substantial financial value, is saved in a password protected digital ‘wallet’. If the wallet, the password or the device on which the wallet is stored are lost, the asset, and its value, is lost permanently.

What should I do?

It is not advisable to leave passwords or information about your digital assets within a will. There are a number of services which will keep a secure record of your assets within a ‘virtual safe’, but the use of these portals is not without risk or cost.

A better alternative would be to leave a detailed log of your digital and non-digital assets to be stored alongside a will. This should be updated regularly, and will be made available to the executors on death to provide them with the information they need to administer and access these assets, or to contact the content providers where the terms and conditions prohibit a personal representative from accessing someone else’s account.

It is also advisable to regularly download any items of sentimental value such as photographs or emails. The executors will then be able to access the accounts and retrieve photographs or other sentimental items, or to report and collect in assets of financial value, before closing the accounts down, or requesting that the content provider closes them. It is also interesting to explore going forward what the scenario is when a digital intangible asset is stored on a tangible physical device, such as a hard drive.

You may recall the significant loss to one unwitting digital entrepreneur who discarded a digital storage device in clearing out his room in Newport, South Wales. The device contained some of the first bitcoins ever developed and in the sharp rise of this new currency the mishap ultimately caused the poor chap to throw away £4.5m into a land fill site!

The future of digital assets

Clearly as this area grows, the definition of ‘asset’ will need expanding to reflect an ever digitalised population and the increasing value which these assets hold; content providers will need to address the issue of how these assets can be accessed by the personal representatives and any value preserved for the estate.

For more information or guidance, please contact:

Celia Speller
Solicitor
T. 020 7227 6719
E. celia.speller@rlb-law.com

Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accept no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommend that appropriate legal advice be taken having regard to a client’s own particular circumstances.