Wills: Traditional and Digital

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Have you considered this question: What will happen to your assets once you pass away?

In order to ensure that your assets will be distributed to persons whom you actually wish to inherit, a properly drafted and executed Will is of the utmost importance. Should you die without a valid Will in place, you will die intestate, resulting in your assets devolving upon persons whom you might not have wanted to inherit from your estate.

Not only does the exercise of preparing your Will allow you to ensure that your wishes are carried out, it also allows you to consider the emotional, financial and administrative impact which your death may have.

Relevant questions you can ask yourself in order to determine the need for you to have a new or an updated Will prepared, are as follows:

  1. Is your current Will valid?
    • Did you sign on each page of your Will, in the presence of two competent witnesses?
    • Were the witnesses independent, or are they persons or spouses of persons mentioned in your Will?
    • Have you made any alterations to your Will and have these been made validly i.e. by means of a codicil, or changes initialled by both you and your witnesses?
    • Do you have your original Will and does your family know where to find it?
  2. Have you experienced any life-changing circumstances?
    • Death of family member?
    • Birth of a child?
    • Marriage or divorce?
  3. Do you have any children under the age of 18 years?
    • Have you nominated a guardian?
    • Have you made provision for the creation of a testamentary trust in your Will?
  4. Have you nominated an executor who has experience in estate administration?
  5. Is the executor you nominated still the person you wish to handle the administration of your estate?
  6. Who are your heirs?
    • Are they correctly identified by full name, surname, relationship to you, and ID or date of birth?
    • Did you make provision for alternate heirs in the event that some or all of your heirs predecease you?
    • Are there any changes to be made to your named beneficiaries?
  7. Do you understand the clauses in your Will?
  8. How are you married? Your matrimonial property regime will, in most cases, have an effect on your estate.
  9. Do you have business interests, and have you considered what will happen to these business interests?

    The advantages of proper estate planning are that:

    • Your loved ones will be looked after financially;
    • There is sufficient liquidity in your estate to pay all liabilities, without having to compromise your fixed assets;
    • All documents are in a safe place and well organized, to assist your executor in identifying and dealing with all assets and liabilities; and
    • Appropriate persons are authorized and appointed to handle your affairs after death.

DIGITAL WILLS: A NEW ERA OF ASSETS

Everplans describes digital assets as follows: “Digital property (or digital assets) can be understood as any information about you or created by you that exists in digital form, either online or on an electronic storage device, including the information necessary to access the digital asset. All of your digital property comprises what is known as your digital estate.” (A Helpful Overview Of All Your Digital Property And Digital Assets." Everplans. Web. 10 Mar. 2017.)

Whilst considering your estate planning needs, have you given any thought to your social media and digital legacy and how this is to be treated once you are gone? Emphasis must be given to estate planning in every aspect and ensuring that all necessary information is at hand for efficient administration of your estate.

We are living in a time where technology is at the heart of our existence- social media sites like Facebook, Twitter and Instagram dictate and capture our lives on a daily basis. We spend so much energy on these sites; posting photos, writing about experiences and writing blogs, that it makes sense to leave instructions on the manner in which you would like these digital assets to be handled after your death.

The questions are: how do you want your legacy to live on in the social media world and what would you like to happen to your digital assets?

Regardless of your answers to these questions, the solution to ensuring that your wishes are carried out, is a Social Media and Digital Assets Will. There are two parts to the Social Media and Digital Assets Will. The first deals with what you would like to happen to your social media legacy and content, and the second deals with your data stored on cloud servers and your own hardware.

In South African Law at present there is no inherent right to privacy after your death, as this particular right ceases upon your death. It may, however, be of some comfort that it is the strict policy of most social media sites and other online service providers, to not, barring compelling and unusual circumstances as well as a court order, grant another person access to your account or profile, or to provide them with the content contained in the account or profile, after your demise.

Whilst in the case of those persons who’s answers to the above questions may be that “my legacy is not to live on and my content is not to be shared with anyone”, it may tempting to not record these wishes in the form of a Social Media and Digital Assets Will, but it is nonetheless advisable to execute a Social Media and Digital Assets Will, so as to ensure that your wishes are not deviated from and that your personal data is not disclosed.

Depending on the type of social media platforms and online services which you use, there are different options at the disposal of your executor or family member in the event of your death, a few of which are listed below:

LinkedIn will only allow for your account to be closed and your profile removed. Your death can be reported by your family, or alternatively, by a colleague who identifies your profile to LinkedIn.

  • Facebook allows your account to be “memorialized”. This, in essence, allows your Facebook page to remain active for friends and family to post on and visit. The word “Remembering” will then appear before your name. The person who manages this page is your Legacy Contact. This is a person who you nominate, via a setting on Facebook. The Legacy Contact cannot change any posts, but can write a new post on your profile and change your profile picture etc.
  • The alternative option on Facebook, is for your account to be closed and deleted. This can be done by request by a family member, after certain proof has been provided to Facebook.
  • Instagram, being owned by Facebook, also allows either the memorialization or closure of your account.
  • Twitter does not allow the memorialization of your page, but will instead suspend the account after a period of 6 months of inactivity, or will close your account when requested to do so by a family member, after the provision of certain documents.
  • If you own a Yahoo! Mail account, then the only option is for a termination request to be sent to Yahoo!
  • If you own a Gmail (or other Google-based accounts), then there are two options available to you:
    • The Inactive Account Manager may be used, whereby after a set period of inactivity, your account is deleted, and the data can be downloaded by a pre-selected trusted contact; or
    • Your account is closed upon request by a family member.

As you will note from the above, the options available to you and your family as to your continuing legacy are limited, and the possibility of your family accessing your data is very unlikely, but you should, in any event, exercise your rights in this regard, and stipulate what is to happen to your accounts and data. If, on the other hand, you do wish for your legacy to continue and for your designated digital executor to access and download your data, it would be necessary for you to nominate your digital executor as your legacy contact/trusted contact and to provide your digital executor with your login details for those sites or locations where your data is stored. This can be done in a Social Media and Digital Assets Will, so that your data may be downloaded and preserved for your loved ones to treasure for generations to come.

Remember, your online legacy and digital assets will continue to exist long after you die. Set aside some time and give this issue the necessary thought it deserves. You will end up saving the ones you leave behind a lot of time and effort by dealing with these issues now.

Speak to our team about managing your digital will.

Eleanore

Eleanore

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