Three Areas You Should Consider in Your Digital Estate Plan

Three Areas You Should Consider in Your Digital Estate Plan

Post By George in Estate Administration

Digital estate planning is the aspect of estate planning dealing with non-physical property, especially online or in the cloud, or in electronic accounts.

There are three areas of digital estate planning:

The first area is online assets that have financial value.

For example, a brokerage account that is only accessible online; an online bank account; an eBay account; or a sales account from a business where the value of it is only accessible online. Where there’s a financial value – something that can be measured readily in dollars – then that obviously has a value, and the executor or administrator would have a duty to collect it.

Most people can readily understand this aspect of planning, and it’s the easiest category. A good planner should ask, “So, do you have any money or securities or property that you can access only through the internet?”

The second broad category are items that may have tremendous emotional value, without any financial value.

The best example of this would be photographs. Whether through Facebook or Instagram or photo-specific archive sites, people have electronic assets in the form of images and videos that may not have any dollar value, but could have an exceptionally significant emotional or legacy value.

A person doing their estate planning may have specific wishes about such property – not only who gets what, but whether some of it should be destroyed and how it should be handled. You can certainly imagine someone having specific ideas about who has access to the photos, or leaving a specific instruction that some should be accessible and others not.

Conversely, in a decedent’s estate, just because there’s no financial value doesn’t mean that an executor or administrator doesn’t need to worry about electronic property! If it exists as an asset, then it’s potentially property that belongs in the estate, which means that a beneficiary could potentially demand to receive it.

A third aspect of digital planning, which is distinct from the other two, is what I’m calling the process value or the administration value.

There’s a finality in closure. By this I mean the idea that the executor has a duty to not only find online property and distribute it, but also to resolve, shut down and close out online accounts, whether email accounts or some other kind of online presence. Just as an executor has a duty to return an apartment to the landlord, the executor theoretically – and the law is evolving on this – has a duty to deal with the online accounts.

A close-to-home example: my mother died recently, so imagine my surprise when I received an email from her saying that she had traveled to London and lost her passport, and I should wire her money so she could get back safely. Spam is always annoying, but never moreso than when it comes from your dead mother!

Thorough and thoughtful estate planning means planning for all assets, including so-called digital assets. Similarly, in an estate, an executor or administrator wants to be mindful of marshaling and managing not only real and tangible property, but also electronic/digital/online assets and rights.

What Happens to Your Online Stuff After You Die?

What Happens to Your Online Stuff After You Die?

Many people write wills for their physical property, but few even think about creating a plan for their digital estates. Without such a plan, your loved ones might be unable to access your digital files or the accounts could be deleted before they see them.

A digital estate plan can help ensure that every online account will be accessed or transferred to the right person. And for those with networks of online-only friends and work colleagues, a digital estate plan can help inform those virtual friends of one’s actual demise.

Let’s start with a look at the nature of the problem, and then we’ll look at some solutions.

Terms of Service Agreements

Remember those “I agree” boxes you checked next to Terms of Service Agreements without so much as glancing at the fine print? They typically restrict “non-authorized users” (in other words, your survivors) from accessing your accounts.

Plus, they often say accounts are nontransferable. While people violate service agreements all the time without repercussions, the agreements are legal contracts and violating them is a crime, although a misdemeanor. Social media companies often say they allow heirs to delete the deceased’s account and not much else. Photos, comments and stories, everything else (good and bad) is lost.

A digital estate plan will help your executor access and manage your online possessions. While they do not guarantee access (because of those service agreements), they often persuade a service provider to approve login access, especially since the contracts can change.

Creating Your Digital Estate Plan

Experts recommend following these steps.

1. Create an Inventory

Make a list of your online accounts with their usernames and passwords. Include social media sites, online bank accounts and credit cards, and utilities paid online. Remember to update them when changing accounts and passwords or at least once a year.

2. Save It

Store them in a secure location like a safe deposit box, CD, flash drive, or encrypted computer file. Password managers such as LastPass or1Password make it easy to encrypt and securely store such data. Another popular password manager — PasswordBox — includes a feature called “Legacy Locker” that stores logins and passwords and shares them with designated people upon your death.

Don’t include your logins and passwords in your actual will, which becomes part of probate court’s public records.

3. Name a Digital Executor

Your digital executor can be different from your regular executor. The digital executor should be digitally adept and, like your traditional executor, be impartial and trustworthy. Be specific and name accounts the executor will be able to control, delete, and maintain.

4. Say What You Wish to Happen

Define what you wish to happen to your accounts. Do you want your Facebook account deleted or memorialized? Let your executor know if you’re using Google’s Inactive Account Manager. Your executor is obligated to follow your instructions.

What Google, Facebook and Others Will Do

Google recently introduced its Inactive Account Manager. You can use the tool to name a “trusted contact” to be contacted if a Google account, such as Gmail, YouTube, or Blogger, becomes inactive for any reason. If your account is inactive for a period of time, which you choose, Google sends you a text or email. If you don’t respond, Google can — based on your instructions — delete the accounts or allow trusted contacts “to receive data” from the accounts.

Facebook

Facebook won’t release login information but will delete or “memorialize” an account on the request of heirs. Memorialized accounts are essentially frozen in time. No one can login or add or change photos or anything else. Depending on the privacy settings of the deceased person’s account, friends can share memories on the memorialized Timeline.

LinkedIn

LinkedIn says it will shut down profiles of deceased members on request. It asks heirs to complete and electronically sign a form via DocuSign. If heirs have login information, they may want to download the deceased’s contacts, although it’s legally unclear if the contact lists belong to the LinkedIn members or their company.

Twitter

Twitter will shut down accounts of deceased users on request. According to Twitter’s policy, heirs have to mail or fax a signed statement, a copy of the death certificate, and a copy of a government-issued ID like a driver’s license.

Digital Media

When consumers purchase digital music and e-books, they technically only buy licenses to view or hear them. For instance, the iTunes terms of service agreement says accounts are nontransferable and will end if users don’t meet the terms. But if agreements allow multiple computers per account, heirs could use that loophole to claim the purchased media.

Missing Login Information?

If a relative passes away without leaving login information, heirs might be able to obtain access with the proper documentation and patience.

Google says it might provide Gmail access if heirs send a copy of the heir’s government-issued ID and the death certificate. But it makes no promises and warns the wait can be long.

YouTube says it might grant access “only after a careful review” if heirs provide a copy of the death certificate and power of attorney document.

Because the concept of digital wills is relatively new, it’s unclear how the issue will evolve. Internet firms could change policies after more requests from grieving families. Few states have laws on digital estates but more may address the topic in coming years. Despite the uncertainty — or maybe because of it — creating a digital estate plan can help your family access your virtual self before it, too, expires.

Have you considered what will happen to your digital self — and your digital property — after you pass? What steps have you taken? Please share in comments (which are forever, unless something happens to the server, or an heir asks that they be removed).

Digital Legacy Association urges hospices to support patients in managing their digital estate

United Kingdom: Leaving A Digital Legacy In Your Will

On 16 April 2014, the Law Society published a press release encouraging testators to leave a list of their online accounts, such as email, banking, investments and social networking sites like Twitter, as part of their arrangements on death. Leaving specific wishes as to what should happen to such digital assets is something that we at Wedlake Bell have promoted for some time, and forms part of the standard information we discuss with clients when they make their Will.

Whilst we encourage clients to list their digital assets, regrettably the law as to how such items pass on death is far from clear. It largely depends on the type of account and service provider as to whether loved ones can access your account after you die. However, Google is one of the service providers that has addressed the issue. It was announced on 11 April 2013 that Google users can specify which of their “trusted contacts” can access their accounts after they die, or alternatively to direct that their accounts be deleted. The wishes will be implemented after a fixed period of inactivity (a minimum period of three months). The wishes are set up through the “settings” option for the relevant account and effectively allow users to create an online Will. The tool applies to Google-run accounts such as Gmail, YouTube and web album Picasa.

Unfortunately, accessing online accounts after death remains a problem with many other service providers, as highlighted in the case of Benjamin Stassen in the United States of America.

The Case of Benjamin Stassen

Benjamin Stassen committed suicide in late 2010 without leaving a note.  As personal representatives of his estate, his parents sought access to his online records for an explanation as to why he committed suicide.  They contacted Google and Facebook asking the companies to release their son’s passwords so that they could access his Gmail and Facebook accounts.  Google complied but for months Facebook refused on the grounds of privacy. It was only after the Stassens threatened further legal action that Facebook allowed them access, and even then it was on the basis that the Stassens did not share the content with third parties. Facebook made clear that they were making a unique exception and their policy remains that a user’s account cannot be accessed by their heirs after death.

Most online service providers bind users by their terms of business.  Personal representatives can close a Facebook account or turn it into a ”memorial page” but under their terms of business, cannot access it.

Benjamin Stassen’s parents obtained a Court Order forcing Google and Facebook to give them access to their son’s records.  Google complied with the Court Order.  However, whilst the Order released Facebook from their duty of client confidentiality, the company is standing by its policy of not allowing personal representatives access to accounts, and so far as we are aware, has continued to deny the Stassens access to their son’s account.

Personal Data

You can see why Facebook did not want to grant Benjamin’s parents access to his personal data.  The law in relation to privacy is a tricky one.  The law in the US is, of course, different to the law in England and Wales.  In England there is no specific law about privacy.  Article 8 of the Human Rights Act 1998 is often cited by celebrities in relation to a breach of privacy, but this only applies to state bodies and not individuals and there is no specific case law about the release of personal data to executors or personal representatives.

Online Assets

The emergence of cloud computing has led to assets being stored on remote servers which may be located in jurisdictions outside the UK. For example, Apple’s i-Cloud which stores music, films, TV and any other downloads made by a user together with e-mails and personal data.  Apple’s policy is to delete all e-mail and data from i-Cloud following the death of a user.  However all content downloaded on its i-Tunes service is subject to a licence which can be revoked on a user’s death. It is not clear how Apple will treat downloaded content following a user’s death but it seems that they would have the right to revoke the user’s licence and delete potentially valuable content.

As digital assets are not tangible property it seems unlikely that a person could bequeath their online music collection to beneficiaries in their Will in the same way as they would could leave, for example, their C.D. collection. This is because the C.D. collection is a physical object which can be left in a Will whereas digital assets are not defined by law in the same way.

Clearly the law in this area has not yet caught up with technology.  However, enterprising companies have exploited the gap in the market for bequeathing digital assets.  For example, Legacy Locker allows people to store online passwords so that executors and personal representatives can access online accounts following their death.

Creating an inheritance for your digital assets and data

The best way to deal with online assets and personal data is to leave specific instructions as part of your Will detailing the online accounts you own and granting your executors access after your death. As a Will becomes a public document after death, it is not wise to include this information in the Will itself; however, a Letter of Wishes, which is a personal document to executors, could be written listing online accounts and how the executors can access those assets, together with specific wishes in relation to each account (e.g. whether it should it be closed, or access given to a named beneficiary). In addition, those who have Google-run accounts should also update their settings for the relevant account to mirror the same wishes in case there are any problems with beneficiaries accessing the accounts with the details given in the Letter of Wishes.

If a user has especially important online assets or data, such as valuable emails or photos, it would also be wise to create a hardcopy of these or save them to a disk or memory stick. Hardcopies can pass under a Will as physical property and will pass to whoever inherits the user’s personal effects (or the user can name a specific person to inherit them).

However notwithstanding these steps, executors are at the mercy of service providers and problems may be encountered if service providers do not recognise the consents given in a Letter of Wishes. There may also be jurisdictional issues at stake. However, for the present (or at least until other service providers follow Google’s example or a test case is taken), setting out express instructions in a Letter if Wishes gives the user the best chance of enabling his loved ones to inherit his personal digital effects.