Prince’s death highlights importance of writing a Will

Prince’s death highlights importance of writing a Will

Prince

The death of the world famous popstar has shone a light on how important it is to have a Will in place says Hannah Blakey.

On 21 April 2016 the Queen celebrated her 90th birthday. A day of jubilation was planned, honouring the Queen’s life and her dedication to the Commonwealth and international affairs. On the day, however, it was the death of a Prince which shared the headlines alongside the life of a Queen.

For, also on 21 April, Prince, one of the twentieth century’s greatest musical artists, was found dead in a lift on his Paisley Park estate, near Minneapolis. In interviews with friends following his death, Prince has been described as healthy in his habits, tireless at work and an energetic creator who avoided alcohol and recreational drugs. His death has therefore left investigators and mourners alike grappling with how the musician’s life could have come to such a sudden end.

The unexpected nature of Prince’s death, tragically at the age of 57, alongside a flurry of other shocking celebrity deaths in 2016, exemplifies the importance of having appropriate estate planning in place. As it is never possible to know what is waiting around the next bend, preparation is vital.

On this side of the pond, the first step that all should take, once they are over eighteen, is putting in place a Will. By doing so, it is possible to avoid the inflexible intestacy rules that would otherwise apply, ensuring that you are in control of where your estate passes. Someone in the public eye, like Prince, should also prepare the Will with publicity in mind: a Will becomes public document after a person’s death. Including a trust or overriding power in a Will not only provides flexibility to adapt to whatever the future holds (a key consideration when you are putting a Will in place which is unlikely to be needed for decades) but can also protect the identity of heirs.

A key element of putting in place a Will is considering who to appoint as executors of your estate. The executors are responsible for collecting in and distributing the estate of the person who has died in accordance with the terms of their Will. The role of an executor is one of great responsibility. It can also be an onerous job, so it is important to consider whether those chosen will have the time and abilities to take on the role, especially at what is likely to be a highly emotional period.

To aid your future executors, the Law Society’s Wills and Inheritance Quality Scheme Protocol recommends the completion and maintenance of a Personal Assets Log. By keeping an informal inventory of your assets (and storing important policy documents alongside this list), you will enable your executors to piece together more easily what you own (and if your executors are professionals, more cost-effectively).

In the technological age in which we live, it is vital that, in preparing this log, you consider leaving clear instructions about what should happen to social media, computer games and other online accounts after your death, as well as more tangible assets. Preparing a list of all your online accounts, such as email, banking, investments and social networking sites, will make it easier for executors to work out your digital legacy and adhere to your wishes. Leaving a list of accounts (rather than a list of passwords and PIN numbers) is preferable, as an executor accessing your account with passwords and PIN details could be committing a criminal offence under the Computer Misuse Act 1990.

With an estimated estate of £200 million, and with no living children or partner, it is not yet clear who will inherit Prince’s fortune or the rights to his music. Wherever his assets pass, it is undoubtable that Prince’s memory will live on through his innovative music that defined an era.

Is Your Digital Life Ready for Your Death?

The Growing Importance of Digital Estate Planning (Part 2 of 2)

Let’s get started by reviewing end-of-life planning and guidelines for discontinuing the social media accounts of a loved one. For our purposes today we’ll discuss the most popular social networking sites.

When individuals pass suddenly or if they haven’t outlined their wishes for terminating a social media account, each of the major social media channels will typically request legal documentation in order to begin the closure process (check out this helpful infographic from Mashable).

However, this is a very new area and each of these sites is in its infancy in terms of putting together policies.  We have heard of heartbreaking stories of people who have put all of their photos on Facebook and haven’t provided anyone with their password. Upon their passing, Facebook was not able to give the family access to the account and all of the photos were lost.

Here’s a quick run down of what is required when discontinuing a social media account:

  • Facebook: Facebook has two options for what to do with a deceased family member’s account.
    • Memorializing a Profile: This feature allows the account to be viewed but not edited (with the exception of a Legacy Contact now being allowed to make one final post, usually regarding funeral arrangements, etc.)
    • Terminating an Account: An individual can deactivate a profile by completing Special Request for Deceased Person’s Account; it is necessary to provide your relationship as well as a copy of the individual’s death certificate, the deceased person’s birth certificate, or proof of authority.
  • LinkedIn: You have two options to handle a deceased person’s account.
    • If you have the password of the individual, you may follow LinkedIn’s instructions to simply close the account. 
    • However, if you do not, there is a process to terminate the account that requires you to provide certain information about the deceased person.
    • Who Can Do It: In LinkedIn’s case, it doesn’t need to be an immediate family member to terminate an account. It can be any one of the following: Immediate family (spouse, parent, sibling, child), extended family (grandparent, aunt, uncle, cousin), non-family (friend, co-worker, classmate).
  • Twitter: Twitter will work with the estate or immediate family members to remove an account.
    • What is needed: Fax Twitter copies of the death certificate and your government-issued ID (such as a driver’s license), along with a signed, notarized statement and either a link to an online obituary or a copy of the obituary from a local paper.
    • Who can do it: A verified immediate family member of the deceased or a person authorized to act on the behalf of the estate.
  • YouTube: Since YouTube is owned by Google, you need to reference the policies on Google’s site. Google has a process in place for immediate family members and representatives. It provides for a number of options, including closing the account and requesting funds from the account.

Keep in mind that social media accounts often change their policies and it’s important to revisit procedures even after you’ve had a conversation about terminating a person’s digital assets.

How teenagers mourn in the digital age

How teenagers mourn in the digital age

THERE was a time when the rituals of death were clear-cut: The deceased was laid to rest, loved ones mourned, and the hope was that the hurt would heal with the passage of time.

Photographs, occasional letters, memories, and a headstone were the legacy left behind.

Not so in 2014. Death in the digital age has opened up a whole new world where outpourings of grief are more common online than at the graveside, and where the desire to continue to ‘connect’ with the deceased is facilitated by social networking sites such as Facebook, where millions continue to post photographs and messages to the digital profile of the deceased.

Examples of this activity are rampant. Take, for instance, the Facebook page for Cork woman Tina Greaney who died in 2007, aged 26, of a cocaine overdose. Family and friends regularly post messages to their beloved — to wish her goodnight or good morning, sometimes sending their love, and, poignantly, sending annual happy birthday or Happy Christmas wishes.

Despite the passage of time, Tina’s nearest and dearest choose to continue to interact with Tina’s digital self.

But what is behind this drive to mourn online and how healthy is it, emotionally and psychologically, to grieve in this untraditional way?

Elaine Kasket, a counselling psychologist and lecturer at Regent’s University in London, has been researching this technologically mediated mourning. Having interviewed young people, she believes Facebook provides a legitimate outlet for dealing with grief. In a paper published in law and technology journal Script-ed last year, Ms Kasket gave examples of what Facebook meant to some of those young people dealing with loss:

n“You can think thoughts in your head, and think ‘Oh, I’m hoping he can hear me’, but when you write something in Facebook, it’s a more tangible way to communicate… I can, sitting in my room, just click over that page, look at his face, remember. It’s so easy and accessible, there’s still that piece of him that’s somehow, in a strange way, immortal.” (Ruby)

nAnother young person, called Claire, said: “I would be close to inconsolable [if the profile were deleted]. Having something that may seem so small to some people is everything to me. [His profile] is the one last thread of him that I have. If we lost it, it would be like losing him all over again. There are just certain things that rip the wounds open.”

The young people’s comments illustrate the value they place on continued, albeit one-sided, communication with the dead in dealing with personal grief. Dr Kasket believes this continuing bond — at odds with the traditional Freudian theory that the healthy resolution of grief involves breaking bonds and moving on — can be “normal, adaptive and comforting”.

As she points out, Facebook is essentially a friends-accessible warehouse of personal and interpersonal data from the deceased individual’s life, and it is the “potential vibrancy of this historical record of relationships and dialogues between friends, possibly spanning many years” that is perhaps key to why a Facebook profile makes the deceased so vivid to those left behind. And it is this vividness that appeals to the mourner who is at pains to preserve the memory of a loved one lost.

Dr Kasket does not view this online interaction as problematic from the point of view of wishing to maintain a continuing bond. She says online mourning is not a risk factor for pathological mourning — where the mourner falls into a bereavement-related depression or is delusional in believing that the deceased is still alive or where functionality is impaired. It’s more a natural expression of grief in a digital age.

Where it does become problematic, however, is when a family, for their own reasons, decide to have a profile removed. Dr Kasket questions this action, arguing that because the Facebook profile is “co-constructed” — essentially a product of exchanges between friends — then it’s not within any individual’s remit, bar the deceased, to have it removed. “I personally don’t agree that families should have the ultimate say,” says Dr Kasket. “It’s about a person’s right to determine what they want their digital legacy to be. Giving anyone control over that is like controlling the eulogy at a funeral.”

Equally, removing a profile closes a conduit to connect with a community of mourners, she says, which can be very isolating, particularly for those at a geographical remove.

Not everyone is so unequivocal about the benefits of online grieving. Bereavement therapist Bríd Carroll, chairwoman of the Irish Childhood Bereavement Network, says that while it’s a natural reaction for some teens she sees to go online in the immediate aftermath of tragedy, it’s often more a short-term thing, where they take comfort from messages of support.

“I think you have to look at it with caution too,” said Ms Carroll. “You will always have someone throwing up derogatory comments. People feel they can be anonymous on one level and on another level, they post their most intimate thoughts. My concern is that there is no emotional regulation. You could actually create a grief monster.”

Ms Carroll says it’s about “finding a safe space to tell what the loss means to you” and that there were “a lot of benefits to the hands-on approach”.

“We’d see as so, so important, empowering parents to help their kids deal with loss,” she says. “We would look at strengthening the natural support networks, such as family and schools. What you don’t want is a script of silence, the ‘we don’t talk about this’ approach where people suffer in silence for years.”

So what does she think of youngsters continuing to post online to the profile of a deceased loved one?

“If it’s going on over a long period, you’d be asking if there’s a grief there that has not been tangibly processed,” she says.

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.