The great digital beyond

The great digital beyond

A friend recently told me of the challenge she faced sorting through her aging parents’ belongings to prepare their home for sale.

Her father had died years ago and her 94-year-old mother had been living in an assisted-care facility for more than a year. Most of the items of sentimental or personal value had already been distributed to her siblings. What remained were her parents’ personal archives — letters, photos, employment/financial/legal/health records, all tangible, physical objects that, once gone, would be gone forever.

In the internet age, personal archives are no longer limited to the tangible. In fact, much of one’s personal archives is now digital — emails, texts, photos, videos and social media accounts. And there’s a lot more content generated and stored than ever before. Some is saved on personal storage space, such as a computer hard drive. Other material lives in the cloud in services like Facebook, Google Mail and YouTube. In most cases, that content is protected by some kind of password.

So what becomes of all of that information when someone dies? Does it remain online forever? Can it be altered, deleted or downloaded, and if so, by whom? And how do these digital artifacts represent your life and legacy?

These questions inspired Evan Carroll and John Romano to create the website thedigitalbeyond.com to address these needs and concerns. Together they wrote the book “Your Digital Afterlife” in 2011. Since that time an entire industry has emerged to help people plan for managing their digital legacy. Thedigitalbeyond.com lists dozens of such online services. Some are free while others are fee-based.

Knotifyme.com, for example, “answers the question, ‘What happens to all my online accounts if I get amnesia, Alzheimer’s or if I leave from this world?’ With knotify.me you set future notifications to be sent to your family and beloved people or to yourself, ensuring that nothing of your digital life will be wasted (and) transfers your online property/heritage (urls, domain names, e-mail & social network accounts, etc.) to whomever you wish to continue it in the future!” You can sign up for this free service through your Facebook, Twitter or Google accounts. In short, according to its tagline, Knotifyme.com “manages your digital heritage.”

To address financial matters, consider Legacyarmour.com, which describes itself as “a secure asset protection platform where you organize your important information in encrypted vaults, and …. automatically deliver it to your designated recipients on a scheduled date, or in case of your death or incapacitation.” It is a fee-based membership service with different levels of coverage and prices depending on what you want.

The rapid growth of the web has outpaced the law in the realm of the digital afterlife. It wasn’t until 2015 that the Uniform Law Commission, a nongovernment organization, created the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). It has since been adopted by 40 states and been introduced in five more this year. As its name suggests, RUFADAA “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.”

Some online services have their own policies for providing access to a person’s account after he or she dies. Facebook allows users to designate a “Legacy Contact” who is legally permitted to enter someone’s account to post, respond to friend requests, and update profile and cover photos. The Legacy Contact may also be given the power to download an archive of the photos, posts and profile information in that account. Facebook users can also simply opt to have their account permanently deleted after their death. Google offers an Inactive Account Manager feature that allows users to share parts of their account data or notify someone if they’ve been inactive for a certain period of time.

One important and often repeated piece of advice is to never put usernames and passwords for any online accounts in your will, as it becomes a public record once it is entered into a probate court file.

It is never too soon to start estate planning, whether it be for tangible assets or digital ones. It may be well worth your time to investigate the policy options of your online account services and perhaps even avail yourself of some of the many digital afterlife services available today.

Cerise Oberman, SUNY Distinguished Librarian Emeritus, retired as dean of Library & Information Services at SUNY Plattsburgh. She can be reached at cerise.oberman@plattsburgh.edu. Tim Hartnett is associate librarian at SUNY Plattsburgh, Reach him at tim.hartnett@plattsburgh.edu.

• Digital Assets: Reshaping the way you think about them

Digital Assets: Reshaping the way you think about them

When it comes to, wills, power of attorney and all that goes into crafting your estate plan, you should include a discussion about digital assets with your attorney.

Our lives today are primarily conducted online – making digital assets part of our daily lives. Yet many of us fail to recognize that the value of digital assets are as important as tangible assets. McAffee, in 2014, conducted research that disclosed digital devices hold an estimated value of $35,000. Topping the list of stored items are personal memories, photos, and videos which was estimated at over $17,000.

As we store an increasing amount of assets and accounts online, their emotional and financial value increases. If you have not included digital asset information along with your estate planning documents, your beneficiaries may not be able to access your accounts, particularly if they do not have passwords and related information. Additionally, problems arise with social media accounts that are covered by TOS (terms of service) agreements which prohibit an accountholder from disclosing information to third parties, or allowing them to access your account, and from transferring the account. Laws governing digital accounts vary state-by-state and all too often beneficiaries are locked out of their loved ones’ social media and other accounts.

What is a Digital Asset?

Digital asset refers to any content a person owns in digital form i.e., anything that you access online, your computer, a mobile device, or that is stored in the cloud. The list of digital assets is extensive and tends to fall into several categories including:

  • Passwords: A strong password can secure the information on your computers,

high-tech items and shopping accounts; unfortunately, people are not as careful in selecting passwords making it easy for hackers to access accounts. Google provides many ideas on how to choose hard-to-hack passwords

  • Social media accounts: Facebook, Twitter, LinkedIn, Instagram etc., most of which have exclusive access via passwords and relevant security words. They are subject to terms of service contracts established by social media outlets – therein lies the issue when families try to access a deceased loved one’s account.
  • Email accounts
  • Businesses: Websites, domain name/s, blogs, intellectual property, all data stored digitally etc.
  • Financial: Bank accounts, tax documents, investment accounts, credit cards, virtual currencies, savings bonds.
  • Personal: Electronically stored photo albums, music, movie collections, video games, websites, mobile devices, frequent flyer miles, medical records, shopping sites such as Amazon, EBay, Wayfair, food sites.

Estate Planning and Digital Assets

When it comes to estate planning we realize that protection of our homes, loved ones, and financial assets are critical. However, it is equally important to protect the legacy of your digital assets as well. Pointers for safeguarding your digital assets include:

  • Prepare an inventory of all your digital assets with a description of each along with your user name, password and related security information. Plan to update the inventory each time you make a change.
  • Store the inventory either with your estate planning documents or in a place that it can be accessed by your fiduciary (power of attorney, personal representative (executor), etc.).
  • Authorize your decision makers (your agent(s) named in your durable power of attorney, in the event of a lifetime illness or disability, and your personal representative (executor) named in your will to act for your estate upon your death) with the appropriate powers to access and deal with digital assets in the event of lifetime disability or death. Supplement those powers with private instructions, if applicable, as to how you more specifically wish your digital assets to be handled. For instance you may have certain personal accounts that you don’t ever want opened; be specific.
  • Be aware. Familiarize yourself with terms of service agreements associated with your social media accounts. Some platforms have incorporated ways of handling a deceased’s account, others have not addressed this issue at all.

The importance of including digital assets in your estate plan cannot be overstated as Internet usage becomes more pervasive and as online accounts become even more valuable. Be sure to discuss this topic with an estate planning attorney… soon.

Creating an Effective Digital Estate Plan

Creating an Effective Digital Estate Plan

The term “estate planning” generally includes documents such as a Last Will & Testament, financial power of attorney, health care power of attorney and maybe a trust. However, to address the growing online presence of individuals from young to old, estate planning has grown to include planning of an individual’s digital assets on their death or disability as well. In fact, recent articles suggest that the average user possesses upwards of 90 online accounts. What exactly happens to those accounts when your clients die?

Many people assume that an executor or a family member will gain access to the accounts, but for many states, that is not currently the case. The laws in most states do not grant an executor or family member access to online accounts at the time the owner passes away. The Model Uniform Fiduciary Access to Digital Assets Act (UFADAA) was drafted to provide states with consistent rules and procedures for accessing digital information, however, many digital access providers have vigorously fought to stop states from passing legislation similar to the UFADAA. In an effort to take a step forward, some states have passed slimmed down legislation to allow limited access to certain accounts, such as email. In addition to state laws, each individual digital access provider has their own rules and requirements for gaining access to personal information.

Because access to digital accounts following the death of a family member can be daunting, it is important that clients implement an effective digital estate plan. The principles which guide traditional estate planning are also applicable to digital estate planning. Keeping important documents updated and in a place where family members and/or an executor can access the information is especially important with digital accounts. Most people have a myriad of email addresses, passwords, pin numbers, reset questions, thumbprints, secret knocks and code phrases that grant us access to our accounts. However, how many of those access keys are accessible by a family member and/or executor?

There are currently four methods to transfer access upon death: written instructions, access through specific digital providers, password managers and digital legacy services.

Written Instructions

Many digital users record their passwords and access information and store the instructions in a secure place, such as a personal safe or safe deposit box. If the information is updated regularly and stored in a safe location, this can be the cheapest and simplest method to transfer access to a surviving family member or executor. However, because passwords and other login information change regularly, it is important that the written instructions be updated regularly as well. The necessary upkeep of recording and storing this information can require a significant time investment.

Digital Providers

Many digital account providers are beginning to provide solutions to this issue. For example, Facebook now allows users to designate a profile executor who can access the account upon the death of the account creator. Twitter allows the person authorized to act on behalf of the deceased person to request an account to be deactivated. Email providers, like Google and Yahoo, will consider granting access to an account (or certain limited information) by the authorized person following a review of a written request, and a Gmail user can designate an Inactive Account Manager who may access certain information if the account is inactive for a designated period. While these individual solutions are helpful, it is difficult to prepare each account to be accessed by a surviving family member or executor, since each provider has different rules.

Password Managers

Third party password managers, like LastPass, KeePass and Dashlane, all provide methods to send access information to certain designated individuals on the death of the user. Generally, all password managers have the ability to share stored information with others; however, some password managers provide springing access. For example, LastPass allows users to choose one or more accounts to which they want to grant access and send an advance email to any individual. The email contains a link, which once activated, begins a countdown clock. During the designated timeframe, the original sender has the ability to reject access. In the event that the original sender does…

What Makes up Your Digital Estate?

Estate Planning To Protect Client Digital Assets In North Carolina

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Estate planning documents are designed to protect clients’ wishes both during life and after death. In a durable power of attorney document, a client may pick an agent to help him manage his finances and legal affairs should he become mentally incapacitated during life. And in both will and trust documents, the client may determine how he wants his assets used or distributed after death.

But in the Internet age, it can be difficult to separate certain assets such as financial accounts from the computers, websites, and software used to operate, manage, manipulate, and convey information about those accounts. Thus without proper estate planning incorporating the client’s digital assets, it is a mistake to assume that client fiduciaries such as agents, guardians, executors, and trustees will have the tools they need to perform their obligations.

Existing Laws Do Not Provide Automatic Fiduciary Access To Digital Accounts And Digital Information

In North Carolina, statutory law does not support automatic fiduciary access to digital accounts and digital assets. An NC proposal addressing estate planning and digital accounts was removed from the statute S.L. 2013-91 (N.C. Gen. Stat. 30-3.1) before the Governor signed on March 12, 2013. A few other states have passed digital assets legislation.

Without clear direction from NC state law, controlling law is still mostly dictated by two 1986 Federal statutes which predate the commercial Internet. Although these Federal statutes are outdated, they still guide court decisions.

The overriding purpose of both the 1986 Stored Communications Act (SCA) and the Computer Fraud and Abuse Act (CFAA) is to protect the computer user’s privacy and to prevent unauthorized access to the user’s digital assets. As a result, the computer service providers subject to the SCA and CFAA maintain service agreements that include only one user, and strictly prohibit “unauthorized access.” Some service agreements also state that the individual user’s rights are “nontransferable.” Thus, when a user becomes mentally incompetent or dies, fiduciaries may have difficulty getting access to his online accounts.

In addition, many online services will refuse to release the password information from a deceased user, even in the face of a judicial order or civil lawsuit.

Best Practices Require Both Authorization And Transfer Of Log-on Data Including Passwords

In the absence of a modern statute controlling fiduciary access to digital assets, best estate planning practices require both 1) clear authorization from the principal, grantor, or testator in the estate documents authorizing the fiduciary to access the digital accounts; 2) the actual transfer of account information including log-on information and passwords.

Although these preparations may not work forever and may not work with every digital account, these steps may be the best that NC estate planners can do until controlling laws are modernized. Some digital providers have revised their rules to permit fiduciaries to access online accounts when the proper authorization is included in the primary user’s estate planning documents.

Authorization Language and Definition

Estate planner Jean Gordon Carter and colleagues provide sample authorization language, which may be included in a will:

“Digital Assets. My executor shall have the power to access, handle, distribute and dispose of my digital assets.”

They also advocate including a broad definition of “Digital Assets” in the will.

Proper authorization to use digital assets language should additionally be included in the durable power of attorney document, in order for the agent to be fully able to conduct an incapacitated grantor’s business and legal affairs.

Transfer of Account Administrative Information

In addition to the digital assets authorization language needed in the estate documents, the grantor must also physically transfer to the proper fiduciaries the administrative information required for using the digital assets. This includes account information, log-on information, and passwords.

Randy Siller, a registered representative of Lincoln Financial Advisors Corporation, shares the following seven best practices for clients transferring digital access information to fiduciaries as part of an estate plan:

  • Digital Hardware. List all digital hardware, including desktops, laptops, smartphones, iPads, USB flash drives, and external hard drives.
  • Financial Software. List all financial-related software programs used, such as Quicken, QuickBooks, and Turbo Tax, which may include important tax and business information, as well as passwords.
  • File Organization/Passwords. Provide an outline of the file organization on digital devices so fiduciaries will know where to find important files, as well as any passwords they may need to gain file access.
  • Social Media. List all social media accounts, such as Facebook, LinkedIn, Twitter, and Cloud websites, as well as the information needed to access each one.
  • Online Accounts. Prepare a list of all online accounts including bank accounts, investment accounts, retirement accounts, e-commerce accounts (Amazon, PayPal), credit card accounts, and insurance accounts. It is critical for fiduciaries to have access to these providers.
  • Subscriptions. Ensure that a list of online subscriptions such as Netflix, Norton Anti-Virus, credit reporting/protection subscriptions, and streaming music subscription services are documented so fiduciaries can access or cancel those services.
  • Email. List all personal and business-related email accounts, and how to access them.

Social Media

It is easy for estate planners to focus on protecting monetary assets. But the control of a client’s “digital legacy” on social media may also be important.

Geoffrey Fowler, writing for the Wall Street Journal, has noted: “The digital era adds a new complexity to the human test of dealing with death. Loved ones once may have memorialized the departed with private rituals and a notice in the newspaper. Today, as family and friends gather publicly to write and share photos online, the obituary may never be complete.”

To deal with the desire for users to allow their loved ones to memorialize them through their Facebook accounts at death, Facebook recently decided to allow members to designate a “legacy contact” to manage parts of their accounts posthumously. Members may now also choose to have their presence deleted entirely at death.

On The Horizon

Likely the most complete proposal addressing the need of clients to effectively give fiduciaries access to their digital estate has been written under the auspices of the Uniform Law Commission. The Uniform Law Commission approved the recent Uniform Fiduciary Access to Digital Assets Act (UFADAA) on July 16, 2014 in Seattle, WA.

The Commission states:

The UFADAA gives people the power to plan for the management and disposition of their digital assets in the same way they can make plans for their tangible property: by providing instructions in a will, trust, or power of attorney. If a person fails to plan, the same court-appointed fiduciary that manages the person’s tangible assets can manage the person’s digital assets, distributing those assets to heirs or disposing of them as appropriate.

Until such reforms become law, the best strategy for passing down digital assets to fiduciaries requires both including proper fiduciary authorization language in the estate documents, and the physical transfer of digital asset user information to fiduciaries.

Your Digital Legacy - What Happens To Your On-Line Stuff When You're Gone?

Your Digital Legacy – What Happens To Your On-Line Stuff When You’re Gone?

People plan, or should plan, for all types of contingencies after their demise; a living will, family trust, a last will and testament, even a durable power of attorney to express your wishes about your demise if you’re alive but not able to do so yourself. But what about your digital life? Who has the authority to deal with these properties (intellectual or otherwise) after you’re gone?

Most responsible people have left professionally drafted and approved instructions about what they want done with their money, worldly possessions, other valued assets, and even their remains. But it’s unlikely that the average person has left instructions about how they want their on-line identities and their contents handled.

Hence, your digital legacy, a.k.a. “what becomes of your on-line sites and materials?”, is becoming a major topic of discussion among estate planners and lawyers who have been charged with handling these affairs in your absence.

Since all social media sites require passwords to access them, and we’ve been admonished to death (forgive the pun) about how to protect them, no one can access your accounts to shut them down or even to advise your friends and followers that you will no longer be posting, at least not from this plane. And, because we’re taught to change our on-line passwords frequently, giving your estate’s executor a list of passwords is a cumbersome task; it would seldom be up-to-date.

As a result, it often requires a court order to access the information that you’ve created on your Facebook, Google+, Twitter, Yahoo, eBay, PayPal, Skype, etc. accounts to close them down. (Do you even know how many of these accounts you have, active or otherwise?)

But fret not; this need has created a business opportunity, a hole that’s been filled by companies that specialize in handling your digital legacy after you no longer have a need to post to your Facebook page, or any other site.

Many of these sites offer services that include granting access to your representative, posthumous email services, and on-line memorials where friends and family can share loving thoughts and photographs about you.

According to their web site: Legacy Locker is a “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.” That’s the gist of what these web services are about.

The Digital Beyond is an on-line service where you can find a complete list of companies that offer a variety services; digital estate planning, posthumous emails, and on-line memorial. Helpfully, this site includes a chart that compares these companies to each other in terms of the services that they offer. For example, you might not want an email service posting in your absence, so why pay for it? Some sites listed here are only on-line memorial sites and wouldn’t function as an effective digital legacy service. Companies named “After Steps,” “Asset Lock,” “Chronicle of Life,” “Eternity Message,” “Great Goodbye,” “My Wonderful Life,” “Parting Wishes,” even “Dead Man’s Switch,” give you a sampling of what these sites are about.

It would behoove you to browse around and compare the services, just as you would when looking for an estate attorney to handle your other affairs, then sign on with the one that suits your needs best. Doing so before your family or attorney has to do it will take the pressure off your loved ones to figure it out while they’re adjusting to their loss.

Once you’ve hired a service, here’s hoping you won’t need to use it for a long, long time.

UPDATE: April 12, 2013

Obviously, Google is listening to the media, and perhaps my own tech blog, as they just addressed the issue of what to do with the information you’ve posted on-line through Google’s own services. It’s called “Inactive Account Manager,” which they acknowledge in their statement is an inelegant name, but it’s intent is what’s important, and it seems that they got that mostly right.

With this service turned on, you’re able to predetermine what to do with the information that Google has in your account should something untoward happen to you in an untimely manner. In other words, if you don’t use your Google account within a set number of months (you decided how many), it will automatically delete your account and its content.

It also gives you the ability to notify people that you’ve specified to know that this is happening to your Google information.

The immediate flaw that I can see is that it asks for a way to contact you if your account has been inactive for a month. If I’m in some heavenly (hopefully) afterlife, trust me, my email alerts will be turned off.

Information contained herein is for guideline purposes only, is not intended as an endorsement of any product, and is no guarantee of the results.