More Related Stories New York, NY, March 30, 2017 –( PR.com )– As people increasingly shift their lives online, they create digital assets and memories that need protection after death. Making a will to dispose of tangible assets is no longer enough. In addition, it’s now important to secure […]
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.
Most people that have done an estate plan have made provisions to distribute their physical, tangible assets. However, a glaring need exists for people to address and make a plan for their “digital” assets. These digital assets take many forms and there is no one clear definition of what digital assets are comprised of. This article seeks to address what digital assets are, how to make a plan for those assets, and how to clearly define a plan for those assets.
What Are “Digital” Assets?
Digital assets include everything from text/images to multimedia information. The number and type of digital assets are virtually unlimited. This information may be transmitted via Internet or social media or uploaded using online storage devices. All of those pictures and photo albums that we treasure and upload for safekeeping are considered digital assets. Our conversations on Facebook, Twitter, and LinkedIn count as well. Our online banking, PayPal, and Amazon accounts fall into this realm. Our website addresses, blogs, and domain names count too. Essentially, everything that we do online that requires a login/password is governed by digital asset rules. These rules are different for every online medium. Unfortunately, with the pace of technological innovation the rules often have a difficult time keeping up.
What Happens to “Digital” Assets at My Death?
This is a great question and one that has a multi-faceted answer. As with most things in the law, the answer is that it depends. Since most of us do not read the Terms and Conditions before we select “I Agree”, we are generally unaware of how these digital assets are treated.
Many online user agreements require that your account be terminated at your death. See Yahoo! Terms of Service. Other user agreements allow for a deceased person’s account to be “memorialized” wherein only certain people may view the page after the death of the account holder. See Facebook Terms of Service. Still other user agreements do not discuss what happens when the account holder passes away. See Google Terms of Service. The only certain answer is that there is uncertainty as to how your digital assets will be handled upon your death.
Can My Executor Access My Files After My Death?
The answer to this question is that it depends upon the user agreement associated with each particular digital account. Some people are willing to give family members or friends the login instructions for each digital account. Be warned that this may subject the family member or friend to criminal prosecution (at both the federal and state level) because it may exceed the access granted in the user agreement.
Can My Power of Attorney Grant My Agent Access?
Some people put explicit provisions into a durable power of attorney authorizing the agent to access their digital accounts during period of incapacity. It is important to note that all powers of attorney are void at the instant the principal dies. So after the death of the principal, in addition to potentially committing a state and/or federal crime by accessing the digital accounts, you are further committing a crime by using the power of attorney after it has been invalidated due to the principal’s death.
How Can I Make a Plan?
Due to the legal uncertainties of digital asset planning, a variety of methods may be employed to help carry out your wishes. First and foremost, you should create a back-up copy of your digital assets using tangible media. This could be a CD, DVD, external hard drive, or flashdrive. The tangible copy can then be stored in a safe place such as a safe or safety deposit box. This method works well for photo albums and family memories, but requires constant updating to maintain accuracy regarding social media, email, online banking, and other “real-time” accounts. With that being said, it is still a good idea to utilize this method.
The next step is to make a comprehensive inventory of your digital estate in writing!! This means taking the time to write down all of your user ids, passwords, websites, and security questions. It makes sense to store this list with your will and power of attorney in a safe place. One could also utilize an online password storage service. Upon your death or incapacity, this list can be delivered to your executor (along with the will) or your agent (along with the power of attorney) for his or her use.
One innovative way to handle your digital assets is to create a revocable trust to hold the assets or use an existing revocable trust to place the digital assets in. The primary benefit of using a revocable trust to hold digital assets is PRIVACY. Upon your death, the assets held in a revocable trust pass outside of the probate court system which ensures that the information is not for public display. Additionally, since you create the revocable trust, you can instruct the trustee as to how you want the trustee to manage and dispose of the digital assets should you become incompetent or pass away. This method maintains your privacy and allows you a significant degree of control over those digital assets.
Call Green Law, PLLC today at (806) 548-2953 to discuss your estate planning and digital estate planning needs. We have helped hundreds of clients achieve peace of mind, provide a seamless transition upon their deaths/incapacity, and provide a meaningful and lasting legacy to their loved ones. We look forward to working with you!!
Experts are urging us all to think about what will happen to our ‘digital footprint’ after we die
Many of us turn to the virtual world to mark major life events – graduating from school, scoring a promotion, getting married or having a baby.
But what happens to your “digital legacy” after you die?
Grieving family members and friends would no doubt be aghast to come across a nasty comment about a departed loved one on their Facebook page or see a troll attacking their Twitter account.
So as morbid as it may sound, lawyers and web experts are urging people to include specific instructions in their will about what happens to the digital footprint they leave.
“In an age where digital data has increasing economic and sentimental value, it is sensible to leave clear instructions in your will about what should happen to, for example, social media content after death,” said Robert Rhoda, a dispute resolution lawyer with law firm Smyth & Co in association with RPC.
Our digital afterlife is not something most people think of and tech companies are still grappling with policies to adequately deal with the issue.
It’s a relatively new area of the law, Rhoda said, adding that people should consider leaving a “digital legacy” to avoid difficulties for those left behind to deal with the issue.
“Administering digital assets and social media content is a novel legal issue,” he said.
“Leaving a ‘digital legacy’ enables your personal representatives to liaise with service providers in line with your wishes. This is preferable to leaving passwords with relatives, which can cause them, often unwittingly, to breach laws related to the misuse of computers and data privacy.”
In Britain, the Law Society of England and Wales has started advising people to leave instructions on what should happen to their social media and other online accounts when they die in order to make it easier for family members to piece together their digital estate.
But Rhoda warned that the virtual world was not afforded the legal status of tangible assets.
“Social media accounts don’t have the same legal status as fixed assets, which form part of an estate, and it is not always clear who ‘owns’ them or, rather, who has the right to access them, once the user has died,” Rhoda said.
In recent years, several cases have emerged to test the law.
In 2005, the mother of a US soldier who died in Iraq went through a long legal battle with Yahoo to gain access to his email account.
In 2011, the family of a 15-year-old boy who committed suicide spent years in and out of court to gain access to his Facebook account, arguing that they wanted to see if there were any hints on his page that would explain his decision to take his own life.
In Australia, a recent study by a government body that specialises in wills and guardianship found that while nine out of 10 people have social media accounts, just one in five have spoken to their loved ones about what should happen to their online profiles when they die.
Lokman Tsui, assistant professor of communications at Chinese University, says there needs to be more awareness of the issue.
“This is something that is really critical but that not a lot of people have given much thought to,” said Tsui, whose research areas include new media and how policies should deal with emerging technologies.
“Some of our most private thoughts and conversations are in our emails and social networks but very few people have thought about what happens to that stuff when they die. This is a new area and there are no ‘norms’ that have crystallised about it.”
The topic raises a raft of issues involving data privacy, ownership and the security of a dead person’s account.
Tsui, who used to work at Google as head of free expression for the Asia-Pacific region, said the search engine introduced an “inactive account manager” last year. The feature allows the account holder to give other people access to their Google profile after they die.
Facebook, which has 1.3 billion users, offers two options: the account can be deleted permanently upon the family’s request or it can be converted into a memorial profile.
When an account is memorialised, sensitive information such as contact details and status updates are removed. No one can log into the account but friends and family can leave posts on the wall in remembrance.
Jed Brubaker, an academic at the University of California, Irvine who is researching death, identity and social networks, said this Facebook option was a double-edged sword.
“Memorialised profiles can be powerful places where the deceased’s social network can gather and memorialise the life of their friend,” he said.
“But in my research, unexpected encounters with deceased profiles has been the most troubling aspect of post-mortem profiles continuing to exist on Facebook.
“People can stumble across posts made to post-mortem profiles in their ‘newsfeed’, mixed in with other casual social media content. These encounters can be alarming, especially when a person is not expecting to see this kind of content.”
In its policy, Facebook says it tries to prevent memorialised accounts from appearing in ways “that may be upsetting to the person’s friends and family”.
A spokesman for Facebook, which declined to reveal how many profiles have been memorialised, said they “give people a platform to remember and celebrate the life of their loved ones after their passing”.
Instagram, which is owned by Facebook, has a similar policy to its mother company.
LinkedIn has an online form that allows a profile of a dead person to be removed and Twitter’s policy says an account can be deactivated by an immediate family member or someone who has been authorised to act on behalf of the estate.
Yahoo, which is popular in Hong Kong, will deactivate an account once staff can verify documents such as a death certificate. Access to the account for third parties is not allowed.
A spokesman for the Office of the Privacy Commissioner for Personal Data said that under the city’s laws, personal data was defined only as information which related to a living person.
“When the records relate to a deceased person and no living individual, they do not contain personal data” and were not subject to data protection laws, he said.
Two years ago, Hong Kong lawyer Ryanne Lai Hiu-yeung co-founded an internet start-up called Perpetu to tackle the issue.
Services offered include sending farewell messages on Twitter when you die, the deletion of your emails or their transfer to an authorised person, and deletion of your Facebook account.
The business is still operating but Lai says she is no longer actively promoting it. About 2,000 people signed up and about half were from Hong Kong.
“Most of them are in the ‘internet generation’ so I won’t say they are too young to think about death,” Lai said. “To me, this is more about life than death – it’s about how much you treasure your online presence and content that you create on a day-to-day basis.”
Richard Norridge, of law firm Herbert Smith Freehills, says the intrinsic value of our digital assets is still unexplored territory and someone’s digital legacy can come in many forms.
“It may be music or films held online, virtual currency or perhaps online accounts,” he said.”For many, it still does not form part of their thinking when they prepare their will, perhaps because those engaged in estate planning concentrate on the assets of greatest value.”
Norridge said Facebook’s memorialisation option was a fraught one. “The account is preserved in that it can still be viewed, but no one can log into that account and accounts cannot be modified. Thus if unwelcome comments are posted, they are memorialised, too,” Norridge said.
Ever wonder what happens to your social media accounts, email, online texts and other digital content when you die? Do they simply expire, leaving nothing behind but digital dust? Or can you authorize someone to take them over after you pass on? And if so, what powers would such a person possess?
In response to such quandaries, tech giants Facebook and Google have created systems to deal with death—such as suspending inactive accounts, and creating online memorials. But these steps only address part of the problem.
This novel issue was recently confronted by the Delaware Legislature, which became the first state to pass a uniform statutory scheme granting fiduciary trustees full access to a decedent’s online accounts and digital content, just as they would with more tangible assets. If this trend continues, more people may be able to confidently plan for the disbursement of their digital estate.
Avoiding Digital Death
Left unchecked, social media and online accounts may expire with the decedent. This phenomenon is commonly referred to as “digital death.”
But digital death can also have financial repercussions, as digital assets can have real value. A 2011 survey by McAfee found American consumers valued their digital assets at an average of $55,000. Such assets include digital photos, digital music, client lists, domain names, social media accounts, online manuscripts, blogs, email accounts, computer code, online gaming avatars and more.
Delaware Grants Fiduciaries Full Access to Digital Assets
In an effort to provide a workable framework by which to administer one’s digital estate, Delaware recently passed the Fiduciary Access to Digital Assets and Digital Accounts Act, 12 Del. C. Section 5001, et seq., in August.
What makes the act so unique is that it is the first adoption of the Uniform Fiduciary Access to Digital Assets Act (UFADAA), drafted by the Uniform Law Commission (ULC), a nonprofit group that lobbies to enact model legislation.
According to the ULC, the UFADAA solves the digital estate problem by using the concept of “media neutrality.” This means if a fiduciary would have access to a tangible asset, that fiduciary will also have access to a similar type of digital asset. The UFADAA also defers to an account holder’s privacy choices as expressed in a document (like a will or trust), or online by an affirmative act separate from a general terms-of-service agreement. Thus, an account holder’s desire to keep certain assets private will be honored by the UFADAA.
One reason the UFADAA is so important is because current federal legislation regarding access to digital assets is hidden in the Stored Communications Act (SCA) and the Computer Fraud and Abuse Act (CFAA)—both passed in 1986, with only minor revisions since then. Notably, the SCA broadly prohibits an “electronic communications service” (like an email service or social network) from disclosing the “contents of a communication” to parties other than the sender or recipient. The CFAA imposes criminal penalties (or civil liability) for “unauthorized access” to computer hardware, devices, and stored data.
To address this concern, the act states a “fiduciary with authority over digital assets or digital accounts of an account holder … shall have the same access as the account holder, and is deemed to (1) have the lawful consent of the account holder and (2) be an authorized user under all applicable state and federal law and regulations and any end user license agreement.”
Despite its well-intentioned goals, detractors like Jim Halpert, an attorney with DLA Piper and director of the State Privacy and Security Coalition, still oppose the act. “This law takes no account of minimizing intrusions into the privacy of third parties who communicated with the deceased,” Halpert told Ars Technica. This includes highly confidential communications to decedents from third parties—like doctors, psychiatrists and clergy—who would not expect an executor to review the communications. Halpert also claims it will cause confusion with federal law.
The act is set to take effect Jan. 1, 2015.
Other States’ Approaches to Divesting Digital Assets
Delaware was not the first state to address digital assets. In 2005, Connecticut passed a narrow law giving access to email accounts for deceased residents. Since then, Rhode Island, Idaho, Indiana, Oklahoma, Nevada and Virginia have all passed legislation providing varying degrees of access to digital accounts.
Bills are also pending in a dozen other states, yet all but one has failed to pass. In Pennsylvania, HB 2580—a fourth-generation bill to allow access unless it was restricted by will or court order—has been pending since August 2012.
Implications: Planning for Your Digital Estate
Digital assets have largely replaced tangible ones in our modern world. Yet the laws governing access to these assets remain outdated and inconsistent.
Although a form of personal property and part of a decedent’s estate, commentators have observed that rights regarding digital assets are intertwined in a complex web of federal, privacy, copyright, intellectual property and state law. The result is fiduciaries are often left with little authority or guidance in collecting, distributing and settling a digital estate. And the problem may be more widespread than previously understood. According to a March 2012 article in Technorati, 30 million Facebook accounts belong to dead people.
Current federal law and the law of most states fail even to recognize a fiduciary as possessing authority over digital assets. And until more jurisdictions adopt the UFADAA, this lack of uniformity will only continue.
When a person dies (or is incapacitated) his or her fiduciaries and family members face particular challenges when administering his or her digital estate. After first identifying which digital property is significant, or has value, other obstacles include having to deal with: (1) passwords; (2) encryption; (3) criminal laws penalizing “unauthorized access” to computers; and (4) data privacy laws. Overcoming such obstacles can be tricky—but helpful guidance does exist.
Commentators suggest account holders take four steps to plan for death/incapacity. First, they should inventory their digital footprint by identifying accounts and determining if they have financial or sentimental value. This process should include listing usernames, account numbers and passwords (the average person has 25 passwords). This sensitive list should also be kept separate from their will; a probated will becomes a public record.
Second, account holders should routinely back up electronically stored information—especially if the data is stored remotely—so as to save fiduciaries from having to obtain access from remote service providers that are subject to various federal and state criminal and data privacy laws, like the SCA or CFAA. Fiduciaries would thus only have to deal with the aforementioned service providers in order to close or memorialize accounts.
Third, the account holder should make a plan for managing/distributing the inventoried digital property. This includes designating a fiduciary with power and authority over digital property, providing instructions for distribution, and securely deleting digital assets the decedent does not want passed on to his or her heirs. Understanding a site’s default terms with respect to whether certain accounts will be automatically frozen or deleted is also critical.
And fourth, the account holder should expressly authorize service providers to disclose private information to their fiduciaries so as to evidence their “lawful consent” thereto, and “authorized access” to the data. This can be accomplished by including a clause in a will identifying the above federal laws.
Given the explosion of online content and a comprehensive statutory scheme on the books, digital estate planning may soon become the new normal. Until then, a little knowledge may help stave off the looming specter of digital death.