Funerals and Instagram: A look at the funeral hashtags

Do You Need a Digital Estate Plan?

Will your estate executor have access to your digital estate? Do you know what is involved in a digital estate plan? It’s more than signing your paper will.

Is it enough to leave your email password on a notepad beside your computer?

Sorry, no. You need to learn more digital dos and don’ts.

Digital assets are various online or electronic files with your personal information. They include financial resources and social networks. Digital assets can include personal data with high emotional value. You could also have digital business property with monetary value. Digital assets can be stored electronically, online, in the cloud or on physical devices.

Passwords Can Control Access

Access to your online information or electronic storage is vital. Who should have access to your passwords?

When you make a will, you can appoint a digital executor. You can authorize your executor to hire experts to handle digital assets. You must, however, share passwords and login information to manage such assets.

Executors face a dilemma; in some cases, you may not have ownership of some digital property. Instead, only a non-transferrable access license may exist. Social media user agreements may only permit network access with a personal password. There is nothing to own or sell.

But executors have a duty to collect estate assets. Will they have to hunt for your passwords and usernames?

What about your material in the cloud, on social media or video sites? You can create a digital estate plan and specify your preferences. How is your executor to handle your digital accounts? Should files be closed, maintained or memorialized?

Secure Devices

Estate trustees must be aware of their duties to secure devices with digital information. This includes cell phones, tablets, laptops and computers.

Documents, photos, videos, text messages can be personal or business materials. Executors may not be able to distinguish between these.

Digital assets may have emotional and personal connections for your survivors. This may not translate to monetary value to calculate probate or income tax. However, the loss or expiry of a business domain name or blog can affect online sales and value.

Customer subscription lists and shopping carts can be stored online for businesses. Trademarks, copyrights and creative work can be considered assets and intellectual property. What about the value of an unpublished manuscript or musical composition?

Your online financial accounts may automatically pay utilities, credit card bills, income taxes or loan payments. Your digital estate property can include:

  • blogs
  • domain names
  • online photos and music
  • memorial websites
  • shopping networks
  • loyalty and reward programs

Credit card agreements may impose deadlines for the transfer of rewards or membership points.

Do Not Store Passwords in Wills

You need to store your digital information somewhere other than your will.

Once probated, your will and any password information become public. This could lead to fraud, cybercrime and identity theft.

Many online services store passwords and access codes. These may promise confidentiality. Their guarantees may be short-lived when such businesses fail. Also, digital laws will likely change and courts can order disclosure of such records.

Executors must be aware that online fees can continue to be charged and go undetected. Credit card payments or debt service accounts may have been set up for automatic payments. Without paper statements, executors may be unable to track them.

Digital worlds often have no paper trail to follow. User agreements may prohibit the transfer of passwords and access to anyone other than the registered user.

Can your executor answer your secret questions?

When asked, “What is your favourite bar beverage?” my answer is, “who’s buying?”

Bang! You're dead. Who gets your email, iTunes and Facebook?

Bang! You’re dead. Who gets your email, iTunes and Facebook?

Two things in life are certain: death and taxes. Amazon and other international corporations have found ways* around the latter, but no one can avoid the former.

In the age of Facebook and Google accounts, and with the existence of services such as iTunes where people invest considerable sums in entirely virtual goods, the question needs to be asked: What happens to your online profile and assets in the event of your passing?

Nobody likes to contemplate their death, but in the analogue world we make arrangements – in terms of a will. So why not include online?

Social networks are a huge repository of assets – documents and pictures. iTunes zealots might have invested in libraries stretching to tens of thousands of titles – is that part of the deceased person’s estate?

Not as far as some tech firms are concerned.

There are two parts to dealing effectively with your earthly IT estate: the physical devices and the content of online services. Given the declining cost of hardware, I’d argue the greater value lies in the digital stuff online. Your digital legacy has residual value and it needs to be treated as a valuable asset.

Obtaining access to online accounts of deceased family members has often been a fraught experience. Just over a decade ago, the argument regarding ownership of digital content came to a head when the family of the soldier Justin Ellsworth sued Yahoo! to get access to his email account after his death. Yahoo! only handed over the data when ordered by a court, despite being shown proof of Justin’s passing.

In response Yahoo! changed its policy with regard to what happens after death and effectively, when a user passes, so does the account. It’s in the terms of service. Bummer. With regards to other service providers, the way in which they deal with a user’s death varies dramatically. Some providers won’t even entertain the notion of doing anything, the Yahoo! approach.

Other providers will, with proof of passing, present a number of options. Some services even provide a dead man’s switch that will enable your loved ones to gain some degree of account or information recovery after the event.

Google inactive account manager provides a dead-hand mechanism, configurable ahead of time, to allow the contents of an account to either be completely removed or released to up to 10 nominated contacts – assuming they have the required identification for security purposes. To make it crystal clear, your account will not be available for login. Access to the service will not be granted. This process only delivers the content rather than reclaiming the account.

It would also be good manners to let your next of kin/nominated representative know these options are set on your account. To get that email without realising you were the nominated person could be very distressing. The information required to recover an account usually consists of: birth certificate, death certificate, proof of assignment over the account in question.

What Happens To Your Digital Assets When You Die?

What Happens To Your Digital Assets When You Die? – Infographics

This may sound new but the truth is the digital world is ridiculously part of everyday lives of many Filipinos. And because it is part of almost every Filipino’s lives, digital assets are accumulated by them over time.

In our growing advocacy for financial literacy, not only do we teach how to build up wealth and valuable physical properties and how to take good care of them. We also would like to teach about taking care of one’s assets that are built up online.

If you are a blogger or an online seller, most probably you have accounts in online “money banks” and payment systems such as PayPal, Google Wallet, Stripe, Adyen, etc.  You consider your money in these accounts as your digital asset.

And if you are a writer or an author, you may be keeping your works and files in your Kindle e-books. You know how valuable these digital assets of yours are. The same thing goes to musicians and songwriters who keep their unreleased songs in iTunes or other similar platforms.

These are some of the very important assets that are mostly overlooked by your family members and your financial advisor. That is if you have one.

In a survey data done online security company McAfee, online users worldwide value their digital assets starting from $35,000. That includes items like personal records, career information, special projects, hobbies, and music and art files.

That’s why I believe that aside from our physical assets we should also ensure that we are able to pass on to our intended family members and beneficiaries all our digital assets in the event of our death.

Here’s a very clear yet disturbing infographic from McAfee that made me think further about taking care of my non-tangible assets in my online portfolio.

DigitalAssets_Infographic1

The sadder part is that digital estate planning is very new and countries like the Philippines have no laws or regulations with regards to the access to your online accounts by your heirs.

However, there are some ways and measures to take so that your loved ones can access your online accounts or receive your digital assets in similar ways they would receive your money from investment in paper assets and other tangible properties like your land or house or car.

How Can A Digital Estate Plan Help Your Family After You Die?

Creating a digital estate plan will help your family on the following issues:

1) They can easily locate any of your accounts online
2) They can access your accounts and the information you left in those accounts
3) They can determine if your digital asset has any monetary value
4) They will be able to know if your digital assets have to be distributed or transferred to any beneficiary or loved one.
5) This will also helped them help you avoid online identity theft.

What Happens To Your Digital Assets When You Die And How To Create A Digital Estate Plan?

1. Keep an inventory of all your online accounts. Your log-in IDs and passwords should always be kept in a secure place. You can assign a digital executor and let him know where to access your information. Another option is using a service like PasswordBox where you can transfer your online information to a digital executor upon your death.

Digital assets may include the following:

  • Computers, external hard drives or flash drives, tablets, smartphones, music players, card readers, digicams, and other digital gadgets
  • Data and information that are stored online (cloud) or in a physical device or gadget
  • Online accounts such as email and social media accounts, shopping accounts, photo and video sharing accounts (Tumblr, Flickr, etc.), online storage accounts, websites, and blogs that you may manage
  • Domain or website names
  • Intellectual property such as your copyrighted songs, lyrics, poems, logos, trademarks, and other secret codes and inventions you created or written.

2. Determine and decide what to do with your online accounts. Each of your digital asset should be clearly given instructions on how they should be handled. How should each asset be handled? Know which of them should be saved, deleted, or transferred to your loved ones, friends, or business partners.

If you are making money with these digital assets then determine now who to transfer them to and who should receive all the access information after you are gone.

3. Assign a digital executor. Choose someone who is patient, highly-organized and is detail-oriented. He should be committed to listening and following your wishes as you have written in your will. And of course, he should be tech-savvy and comfortable using the Internet and different social media websites.

As much as possible, name different digital executors for your personal, financial, or business-related digital assets.

4. Save and store data and information in secure yet easy to access location. You can securely store and entrust your data to a chosen, trusted person such as your independent counsel. You may also keep them in a secure online data-keeping services, or simply store them in hardware and lock them up in your cabinet or vault.

The most important thing that you inform one or two persons you really trust such as your spouse, adult kids, and of course, your digital executor on HOW and WHERE they can access your files and data.

5. Include your digital assets in your estate plan. Again, digital estate planning is still alien to Philippine legal industry. But then formalizing your plan to include your digital assets. Look back to our first four steps on how to make your digital estate plan effectively executed after you are gone.

However, do not include your passwords and other digital asset access information in your will. Remember that a will becomes a public document when you die and that anyone can read it. Make a separate document containing all the necessary information without the need to formally change your will.

What happens to you digital assets after you die? They depend on how you will follow the steps given above.

Join the OFW UsapangPiso Facebook Group to learn how to plan your finances the right way and how to grow your money in various financial instruments and investment vehicles such as stocks, mutual funds, UITF’s, bonds, money market, real estate, and others.

What Makes up Your Digital Estate?

A Guide to Digital Estate Planning: an Introduction

 A Guide to Digital Estate Planning

Many years ago, you agreed to be the Executor of your sister’s estate, responsible for Mits administration. After she passes, you begin the process by going to her home tocollect all of her important financial documents. However, you cannot find her Last Will & Testament (“Will”). You head over to her local bank to see if the Will is in her safe deposit box. When you open the box, the only items within are a few pieces of diamond jewelry. You recall that she updated her Will five months prior to her passing, and she mentioned that her attorney e-mailed the document to her.

Great — but how do you get hold of it?

Given the information above, the first place you should look for this document would be your sister’s home computer or laptop. An e-mail account may also be the key to your sister’s brokerage, bank, and credit card statements. She may have arranged to have these documents sent to her via e-mail instead of receiving “hard” copies by regular mail.

Of course, this plethora of data is available to you, the Executor only, if you have the most current passwords necessary to access the computer. But what if you don’t? And if you do, is it legal? Enter the world of issues created by today’s digital age.

 “Digital Assets”: A Definition

Desktops, laptops, tablets, portable hard drives, smartphones. . . we are truly living in an electronic era. Chances are, regardless of age, you use one or more of these devices to store important financial and personal information.

According to www.digitalestateresource.com, a website designed for “estate lawyers who need to learn about how to incorporate digital assets into estate planning,” digital assets can be defined as follows:

The term “digital assets” means, but is not limited to, files, including but not limited to, emails, documents, images, audio, video, and similar digital files which currently exists or may exist as technology develops or such comparable items as technology develops, stored on digital devices, including, but not limited to, desktops, laptops, tablets, peripherals, storage devices, mobile telephones, smartphones, and any similar digital device which currently exists or may exist as technology develops or such comparable items as technology develops, regardless of the ownership of the physical device upon which the digital asset is stored.1

Considering this definition, careful thought should be given to not only e-mail and online accounts but to everything that is stored on your electronic devices, in addition to the hardware itself. Think about all the digital assets you own and ask yourself, “Who should get what, and what should they do with it?”

The Changing Role of Executorship

If something were to happen to you, would your loved ones know where to look? And, if they did, would they be able to access your password-protected accounts?

With our increased reliance on electronic media, document storage, social media, and e-mail, has emerged a new role: that of the Digital Executor. This person’s responsibilities include closing e-mail accounts, social media accounts, financial services accounts, shopping accounts, and photo storage accounts. Ideally, the Digital Executor should be a tech-savvy individual who is adept at knowing how to access a computer without a password or can seek the appropriate advice on how to do so.

A digital executor that is facile with computers can try to “hack” into the computer, with some assistance from online websites. Asking for some professional help in the form of Best Buy’s Geek Squad or a similar service to help crack the password code is another option. There is one major question that hasn’t been resolved, however. Could the Digital Executor be committing an illegal act if they retrieve someone else’s digital files?

Laws Surrounding Access to Digital Information (or Lack Thereof)

According to an article that appeared in late 2011 in Trusts & Estates magazine, if a Digital Executor obtains access to a decedent’s e-mail account without the e-mail provider’s knowledge, that action could possibly violate the provider’s terms of service and could constitute identity fraud. Another possibility is that it could violate The Computer Fraud and Abuse Act whose objective it is to make it more difficult for computer hackers
to breach computer systems. The Act makes it a criminal offense to intentionally access information contained in a financial record of a financial institution without authorization.

Unfortunately, the majority of state laws are quite murky about the legality of an executor retrieving the digital files of a decedent. All the while, retailers and financial services firms continually encourage consumers to transact online and, in some cases, offer incentives to do so. Many financial services firms, for example, encourage customers to sign on to receive online statements or pay bills on line. Similarly, electronic tax filing has become prevalent over the last few years, with e-filers generally receiving their tax refunds sooner than paper filers.

If something were to happen to you, would your loved ones know where to look? And, if they did, would they be able to access your password-protected accounts?

Very few states have turned their attention to the Digital Executor issue. Oklahoma, Idaho, Connecticut, and Rhode Island are the exceptions. Oklahoma and Idaho have passed laws giving the executor “the power, where otherwise authorized, to take control of, conduct, continue, or terminate any accounts of a deceased person on any social networking website, any microblogging or short message service website or any e-mail service websites.”

Iceland have slightly more stringent guidelines. Their laws authorize e-mail service providers to grant an executor or administrator access to a decedent’s e-mail account, upon receipt of a written request, a copy of the death certificate, a certified copy of the certificate of appointment, and a court order.4

In the absence of specific laws in your state, obtaining a court order might be the best way for a Digital Executor to access online accounts and the sensitive financial information they contain.

A Digital Afterlife?

In case you don’t have enough to think about, perhaps your sister didn’t want to close her social media accounts, but instead wanted to leave a digital legacy. This is yet another aspect of estate planning that some individuals are thinking about
and putting into action. This could involve, for example, saving an archive of
your tweets on Twitter or keeping a whole account in perpetuity just as it was
when you were alive. Facebook, for example, will transform a deceased user’s
account into an online shrine of sorts where family and friends can leave
few states memorial messages. (No one can log on, however.) Websites such as
www.thedigitalbeyond.com and www.mywonderfullife.com are poised to help
turned their and offer services such as posthumous e-mail messaging, online memorials,
and digital estate planning.

Attention to the Digital Executor issue.

Additional online estate planning resources include such sites as AssetLock, Legacy Locker, and SecureSafe. For a fee, these sites will house your online information and ensure that your digital assets are distributed according to your wishes after your death. For example, Legacy Locker describes itself as “a safe, secure repository for your vital digital property that lets you grant access to online assets for friends and loved ones in the event of loss, death, or disability.” Some offer specialized digital estate planning software.

Advance Planning, As Always, is Paramount

With the assistance of your financial advisor and estate planner, the key to a successful estate plan — in this day and age, especially — is to plan ahead. It’s also critical to openly communicate with your Executor about all of your assets, digital and otherwise, whether he or she is an attorney, a bank officer, or a trusted family friend. Depending on the extent of your online activities, consider appointing two Executors — one for your digital assets and the second for all of your non-digital assets (both business or personal).

Most important is this — when you or a loved one is in the process of updating estate-planning documents, be sure to address with the estate attorney how the Executor will be able to access any digital information. Remember that any power of attorney you draft should incorporate the disposition of your digital assets. An updated listing of all user names and passwords, in addition to the location of key documents, should be available to the Executor of your estate to ensure a smooth administrative process.

Using and updating such a checklist to keep track of all of your important documents and accounts is a good idea for both you and your loved ones. Keep a copy in your safe deposit box as well. This way, when the time comes, your Digital Executor will be able to locate what he or she needs to efficiently — and successfully — settle your estate.

As time goes on, additional legal guidelines for how Digital Executors should access decedents’ digital assets may emerge. In the meantime, one thing’s for certain — the Digital Executor is here to stay. Spelling out your wishes carefully for what you own in cyberspace will ensure they are carried out on Earth after you are gone.

Digital Files After Death, What Happens to Your Digital Legacy?

Dealing with Digital Assets in an Estate

The term “digital assets” is used in different ways by different people. In a broad sense, digital assets include all of the electronic “possessions” an individual may have, including emails, digital photos, videos, tweets, texts, songs and e-books, as well as online account information for websites or programs.

Digital assets have three distinct elements: a digital file or record, the right to use and a method of access. As part of the estate planning process, these elements should be addressed by the client and his or her lawyer to ensure that the executor will have all required information to access and administer the digital assets. Ideally, the client should prepare a memorandum of digital assets to catalogue all digital assets and services. This provides access to such information in a centralized location for the executor. The memorandum should express wishes with respect to how the assets should be handled after death. It is important to maintain tight security over such a list, but also to ensure that it is kept up-to-date and that the executor knows its location.

Executors often have questions on how to administer digital assets, which we address below.

Can access rights be passed on?

The difference between property rights which survive death and contractual rights which often do not survive death can result in a personal representative having a legal right to the files and information stored with a service provider, but having no enforceable right to access that information. Several U.S. states have passed laws providing executors or estate lawyers with powers to access digital assets but no similar laws have been enacted or proposed in Canada.

Access concerns highlight the value in taking appropriate planning steps to pass on access to one’s digital assets to executors or heirs.

When is an asset not an asset?

Some services provide the user with a limited licence to access the content in particular ways. For example, Apple’s iTunes service allows a user to use downloaded content on up to five authorized devices at a time, and allows each device to store content from up to five different accounts. Such licences are personal rights that expire when the user dies and therefore do not form part of the Estate.

While access to content may continue due to storage on a physical device or continued account access via password, there is no further legal right to the use of such content. In many cases, the licensor will have the ability to delete the account and content if it learns of the death of the user.

What is the “Unauthorized Use of Computer” offence?

Executors administering digital assets must also be aware of the Criminal Code offence relating to unauthorized and fraudulent computer use. Specifically, the Code provides that obtaining “any computer service” “fraudulently and without colour of right” is a criminal offence. “Computer service” includes data processing and the storage or retrieval of data. A Quebec court recently interpreted this offence to mean intentionally obtaining a computer service, while knowing that you are not authorized to do so.

It is unlikely that the Crown would pursue charges against a personal representative for accessing a deceased’s online account for bona fide estate purposes, even if such access was technically in violation of the terms of service. In particular, a personal representative who was left passwords and specific instructions from the deceased would have a defensible “colour of right” that should exclude the application of this provision. However, this provision has not been tested in the estate context and a personal representative uncertain about his or her rights to access a particular service is encouraged to seek specific legal advice before doing so.

How does Privacy Legislation apply?

Personal representatives should be aware of their rights to personal information of the deceased under privacy legislation, since privacy legislation may be raised by computer service providers to deny a personal representative access to the account of a deceased. Under the Personal Information Protection Act (British Columbia), the executor is specifically authorized to request personal information about the deceased, and information on how the deceased’s personal information has been used.

I am the executor faced with digital assets. How do I start?

  1. Identify. Ascertain and list all digital assets of the deceased. If there is a memorandum, this should be your starting point.
  2. Gain access to digital devices. Secure any devices and restrict access. Because the physical property and all the rights to it vest in you as the executor, you are within your rights to circumvent passwords and security measures if necessary in order to gain access.
  3. Gain access to digital assets. Where the deceased has left passwords for his or her online accounts, ensure that you can gain access. Where you do not have a username/password, there may be another way to request the information.
  4. Backup. Where possible and appropriate, make local backups of digital assets that may have financial or sentimental value.
  5. Inventory. List all digital assets for the purpose of accounting to beneficiaries.
  6. Digital assets having determinable value. Digital assets having realizable present or future financial value should be secured and their value ascertained for probate and accounting purposes. Determine whether the asset is to be transferred in kind to a beneficiary or if it should be prepared for sale.
  7. Personal and sentimental items. For personal and sentimental digital assets without determinable value, arrange for their transfer to the beneficiaries in accordance with the will or law. If these assets are of a personal nature, they may fall within the Will’s “articles” provisions.
  8. Personal information. Subject to instructions or wishes for dealing with personal information, the executor should protect the privacy of the deceased to the greatest degree possible.
  9. Liabilities. Determine any liabilities relating to digital accounts and pay them together with other estate liabilities.
  10. Close accounts. Attend to the orderly closing of accounts where all useful assets have been recovered and the account is of no further use.

We expect that the administration of digital assets as part of the Estate will continue to evolve as the methods of access, type of information, and value of the assets change over time. It is important that testators and executors ensure their planning and administration keep pace with the evolution.