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.

Planning for a Digital Legacy

Planning for a Digital Legacy

Digital property is increasingly becoming a more important part of estate planning. Individuals should consider their digital property, in addition to their tangible assets, when finalizing and reviewing their estate plans.

A person’s digital property and electronic communications are referred to as “digital assets” and the companies who store those assets on their servers (Google, Facebook, Apple, etc.) are referred to as “custodians.” Digital assets are typically governed by terms of a service agreement — not by property law. These service agreements are unhelpful when a user passes away or becomes incapacitated. As the number of digital assets we have increases daily, so does this growing issue. To address this, many states have adopted the Revised Uniform Fiduciary Access to Digital Assets Act (UFADAA), which allows a fiduciary the legal authority to manage another’s property and specifically allows Internet users the power to plan for the management and disposition of their digital assets.

Digital assets should be included in your normal estate planning and wealth transfer conversations with your estate planning attorney and family members. Your estate planning attorney may create an amendment to your existing will, trust, or power of attorney to give the designated agent the authority to direct or dispose of your digital assets. This amendment may take the form of a Virtual Asset Instruction Letter, which allows you to list accounts, instructions for those accounts, and the person(s) designated to access them.

Digital assets, while not always tangible, can be very valuable. For example, airline miles and hotel points have obvious monetary value, while photos, emails, and other creative works have sentimental value. As a result, it is important for individuals to have a plan for photos, email and social media accounts, financial accounts, and online memorabilia and documents.

Please contact us to request additional resources on creating a digital estate.

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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.

Learn How to Preserve Your Data with Take Control of Your Digital Legacy

Digital Asset Estate Planning

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.

Additional Strategies

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!!