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.

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.

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

Do You Have a Plan for Your Digital ‘Estate’?

When a close family member of mine passed away back in the spring, no one was surprised that this meticulous planner had left his financial affairs in good shape. The family’s longtime financial advisor coached his wife about how to open an inherited IRA to stretch out the tax-saving benefits of the vehicle, and the family attorney got to work on tying up all of the other loose ends, both financial and legal. But not every aspect of his estate has been attended to, almost six months later. His  LinkedIn (LNKD) profile is still up, as is his old  Facebook (FB) page. In the scheme of things, the fact that those accounts are still live may not seem like a big deal. But that may not have been what he had wanted, either. Because he never specified his wishes for those accounts, his family doesn’t really know. My relative’s situation illustrates that even people who think they’ve ticked off all of the usual boxes on their estate-planning to-do lists may have overlooked an increasingly important component of the process: ensuring the proper management and orderly transfer of their digital assets after they die or become disabled. Just as traditional estate-planning relates to the management and transfer of financial accounts and hard assets, digital estate-planning encompasses your digital possessions, including the tangible digital devices (computers and smartphones), stored data (either on your devices or in the cloud), and online user accounts such as Facebook and LinkedIn. The basic idea is to knit these digital assets in with the rest of your estate plan. “We need to do the next step in planning,” says James Lamm, an attorney who coaches other attorneys on the importance and specifics of digital estate planning. “Who should get the data? And more importantly, are there things we don’t want others to have?” ‘The New Reality’
As we’re all spending more and more time pecking at our phone screens and transacting online, digital assets are taking up an increasingly important role in all of our lives. “The new reality is that our lives are largely digital, and the artifacts of our digital lives have value, from both sentimental and financial standpoints,” notes Evan Carroll, co-founder ofTheDigitalBeyond.com and co-author of Your Digital Afterlife, a book about digital estate planning. At first blush, making plans to allow your loved ones to gain to access your digital property may not seem like a pressing concern–certainly not on par with issues like who should inherit your financial accounts or look after your minor children. Lamm concedes that many digital assets have little or no financial value. But he also notes that “there can be significant value if you know what to look for.”  An obvious example of a valuable digital asset would be a manuscript on the PC of a best-selling author. But domain names and advertising from Web pages and blogs may also have financial value. Downloaded assets such as digital music and book libraries may be worth something, too. And even if they don’t have monetary value, digital assets may have sentimental worth. If you don’t specifically outline what should happen to such assets when you craft the rest of your estate plan, Carroll notes that “The implications could be that your wishes are unknown to your heirs and they won’t have access to precious family mementoes or important documents.” Logistical Hurdles Abound
Digital estate planning is, in many respects, more complicated than traditional estate planning. Whereas finding and managing financial and hard assets after a loved one has died or become incapacitated isn’t always straightforward, identifying and gaining access to the digital assets of a loved one is apt to be an even more cumbersome process. Lamm says that unless the owner of those assets has left specific guidance about the existence and whereabouts of the digital assets, the deceased or disabled individual’s fiduciaries may not even be aware of their existence. Additionally, those digital assets may not only be password-protected or encrypted, but they may also be covered by data-privacy laws or criminal laws regarding unauthorized access to computer systems and private data. Fiduciaries may be able to unearth passwords and gain access to their loved ones’ online accounts, but they may not be doing so legally. The field of digital estate planning is also evolving rapidly, as are digital providers’ policies on what should happen to digital assets that are left behind. For example,  Google (GOOG) has created an Inactive Account Manager, which allows you to name a trusted person who can gain access to your data once your accounts have been inactive for a certain period of time. Facebook, meanwhile, does not currently allow others to gain access to data stored on the social media firm’s site. Digital assets are also governed by a complex web of rapidly evolving laws, both at the state and federal levels. The fact that state and federal laws and digital providers’ rules are so piecemeal, notes Carroll, should serve as an impetus for individuals to “take a few minutes and get their plans in order.” Here are several key steps to take. 1) Conduct a Digital ‘Fire Drill’
Lamm thinks a good first step in the digital estate-planning process is to conduct a digital fire drill, which tends to jog clients’ memories about what digital assets they deem important. He urges his clients to consider the following questions:

  • What valuable items would you lose if your computer was lost or stolen today?
  • If you were in an accident, would your loved ones be able to gain access to your valuable or significant digital information while you were incapacitated?
  • If you were to die today, to what valuable or significant digital property would you like your loved ones to have access?

2) Take an Inventory of Your Assets
The next must-do is to create an inventory of the digital assets you named during the fire drill. Document the item/account name as well as user names and passwords associated with that item. Among the items to document in your digital inventory are:

  • Digital devices such as computers and smartphones
  • Data-storage devices or media
  • Electronically stored data, including online financial records, whether stored in the cloud or on your device.
  • User accounts (Facebook and LinkedIn accounts, for example)
  • Domain names
  • Intellectual property in electronic format (a book you’re working on, for example)

As with the “master directory” I’ve discussed in the past, this document is chock-full of sensitive information, so keeping it safe is crucial. A printed document will tend to be the most vulnerable, unless you store it in a safe or safe deposit box. A password-protected electronic list of your digital assets and instructions on how to gain access to them is a step in the right direction, but it, too, will need to be updated on a regular basis as passwords change. Lamm is a fan of software programs such as LastPass and Dashlane, which securely store your online account information and passwords on your computer and smartphone. Web-based services such as LegacyLocker and AssetLock aim to take the extra step of making this information available to your fiduciaries, after a verification procedure. Lamm recommends a hybrid approach for most individuals. Maintain an electronic list of digital property and passwords, protected with strong encryption and a strong password and backed up in the cloud (as opposed to on your computer and smartphone alone). From there, he advises creating a master password for the electronic list, storing the password in a safe deposit box or home safe, and providing fiduciaries and family members with instructions about how to gain access to it. 3) Back It Up
We’ve all been schooled on the importance of regularly backing up digital assets, and Lamm points out that estate-planning considerations make it doubly important to do so. Even if a specific device malfunctions, storing digital assets on another storage device or in the cloud helps ensure the longevity of those assets. Moreover, online account service providers may voluntarily disclose the contents of electronic communications, but they’re not compelled to do so. If you want to help ensure that your loved ones have access to the information in your online accounts, backing it up on your own device is a best practice. 4) Put Your Plan in Writing
Experts also recommend formalizing your digital estate plan. That means naming a digital executor–someone who can ensure that your digital assets are managed or disposed of in accordance with your wishes after you’re gone. If your primary executor is savvy with technology, there’s probably no need to name a separate digital executor. But if not, or if you have particularly valuable or special digital property, such as intellectual property, Lamm advises a separate fiduciary/executor for digital assets.  Depending on the type of property, the fiduciary may also need special powers and authorizations to deal with specific assets. “Because of the complexities of criminal laws and data-privacy laws,” Lamm says, “you need the right kinds of authorizations in place.”  He also advises individuals to mention specific digital assets in their wills. “If you don’t want to pass it on, that’s fine. But if I had something valuable I wanted to pass on, I’d put it in my will.”

I’ll Tweet When I’m Dead: Estate Planning in the Digital Age

I’ll Tweet When I’m Dead: Estate Planning in the Digital Age

Words Cloud, by Greek Tweeters, CC BY NC 2.0
Words Cloud, by Greek Tweeters, CC BY NC 2.0

Hooked on Twitter? Can’t miss a day without tweeting? Soon there might be a way to continue gracing followers with pithy witticisms even after we’re no longer alive. The application, now in beta, is called “LivesOn.” “When your heart stops beating, you’ll keep tweeting,” the LivesOn website home page cheerily proclaims.

Welcome to the world of the “digital afterlife,” a product of the fact that we increasingly live our lives online. With the ubiquity of social media and other forms of online media, we should consider the possibility that our tweets, photos, videos, posts, blogs, likes, pins, tags, online storefronts, email messages and avatars may live on even after we have died, and whether this is what we want.

Cases in the News

A number of well-publicized cases illustrate the negative consequences of not planning what to do with online accounts in the event of an untimely death. Take the case of Lance Corporal Justin Ellsworth, who was killed at the age of 20 in 2004 by a roadside bomb while deployed in Iraq. His father John Ellsworth wanted to create a memorial to his dead son and requested that Yahoo release the e-mails that his son had written while he was on duty. After a legal battle, the following year, a probate court ordered Yahoo to provide the contents of his son’s email account to Ellsworth (see Yahoo releases email of deceased Marine).

The case highlighted the tensions between an ISP’s terms of service, which are designed to protect privacy, and the needs and interests of a grieving family. Other cases have arisen that involve families who want access to the accounts of children who commit suicide or who pass away due to illness.

Why You Should Care

Digital estate planning can help prevent, or at least mitigate, the painful consequences of situations such as those encountered by the Ellsworth family. Without digital estate planning, your survivors will have to guess at what your wishes might have been. Well-meaning family members, if they have the technical capabilities, may circumvent terms of service and your privacy to access the contents of your digital accounts. Information that you may not have intended others to see may be brought to light. Alternately, valuable online information that you would have wanted your survivors to access may not be accessible and ultimately deleted.

In addition, proper digital estate planning can help prevent your identity from being stolen after you die or become incapacitated. As Gerry Beyer and Kerri Griffin note in their paper, Estate Planning for Digital Assets, “Until authorities update their databases regarding a new death, criminals can open credit cards, apply for jobs under a dead person’s name, and get state identification cards.”

Herding the Legal Cats: The UFADAA

Proper transmission of digital assets after death is an emerging area of law. Currently, the laws and guidelines in the United States on how to handle online accounts and data after death or during incapacitation are incomplete, complex, and conflicting. Fortunately, a recent legal development may help change that. On July 16 in Seattle, the Uniform Law Commission passed the Uniform Fiduciary Access to Digital Assets Act, which governs access to digital assets.

Drafting a successful uniform act that addresses a task that can be emotionally fraught, in the midst of an ever-changing technical and legal landscape, was no small challenge. Among the key challenges that the ULC had to address in drafting the act were: Defining terms that have not been previously defined in any statutes, ensuring compliance with existing federal and state laws that address unauthorized access to digital information (for example, the Stored Communications ActComputer Fraud and Abuse Act, and The Digital Millennium Copyright Act), providing enough specificity to prevent unnecessarily litigation, and enough generality to allow individuals and courts leeway for evolving interpretation as technology continues to change.

According to a recent ULC press release, “The UFADAA solves the problem using the concept of ‘media neutrality.’ If a fiduciary would have access to a tangible asset, that fiduciary will also have access to a similar type of digital asset.” The uniform act covers four types of fiduciaries:

  • Personal representatives (also known as executors) of a deceased person’s estate
  • Conservators (also known as guardians) for a living person
  • Agents acting under a power of attorney
  • Trustees of a trust

While the UFADAA would vest fiduciaries with the authority to access, control, or copy digital assets, it would honor the account holder’s intent to keep certain assets private.

Ultimately, after a final review and edit of the UFADAA (anticipated this fall), this uniform act will be finalized and available for consideration and adoption by the states.

What You Can Do Now to Plan Your Digital Estate

In the meantime, you can still develop an effective digital estate plan, in consultation with your attorney. Key steps will include:

  • Completing a digital asset inventory
  • Identifying a digital executor and consulting with your attorney
  • Providing access to your digital assets
  • Providing instructions on how to administer your digital assets
  • Granting your digital executor(s) authority to administer your digital estate

Also, it won’t hurt to familiarize yourself with your online service providers’ terms of service and other relevant resources. Key resources that you may want to start with include the following:

In addition to these resources, digital death and afterlife experts Evan Carroll and John Romano maintain a digital death and afterlife online services list on their blog, the digital beyond.