How to Digitally Avoid Taking It to the Grave

How to Digitally Avoid Taking It to the Grave

But in the era of smartphones and cloud computing services, that same stuff may be stored in digital formats on servers scattered across the globe. You may keep documents online or use email as a catchall for paperless receipts, insurance information or financial transactions. And don’t forget the photos, videos and musings left behind at social media sites like Facebook, Twitter, LinkedIn and Flickr.

So how do you make sure all that information — protected by who knows how many passwords — is handled the way you would like after you’re gone? Two words: Plan ahead.

Providers that store digital content are restricted in how they can disclose it to someone other than the account holder. Much of it is protected by privacy laws. And terms of service agreements for things like free email may prevent companies from disclosing that material to anyone without a court order.

“We are in a gray area right now where the technology has progressed faster than the laws,” said Laura E. Hoexter, an estate-planning lawyer at the law firm Helsell Fetterman in Seattle.

Some states have passed laws to address aspects of these issues. For example, a 2013 Virginia law makes it easier for family members to see content in cases of the death of a minor. And the Delaware Legislature just this week passed a bill that seeks to ease access to content.

The Uniform Law Commission, a nonprofit association that looks for ways to bring about uniformity in important areas of law, is also working on a law that could eventually apply to all states.

The commission wants to ease access to content while also honoring a user’s privacy wishes. It hopes all 50 states will adopt its proposal so a single set of guidelines would standardize the process for users, providers and heirs, said Suzanne Walsh, chairwoman of the committee drafting the law, called the Uniform Fiduciary Access to Digital Assets Act.

While the legal issues are being untangled you can plan ahead. Google, for example, offers a tool to help its users deal with the problem. Called Inactive Account Manager, it allows you to designate up to 10 people to receive content from sources like your mail, documents or blogs. You may also choose to have content deleted after you have died.

When the account becomes inactive, your designees are notified and receive the content you chose to share. They do not receive a means of logging in to your account.

Some lawyers view Google’s planning tool as a model to emulate.

“Other companies haven’t started doing this yet, but I’m hopeful they will,” said James D. Lamm, an estate-planning lawyer at Gray Plant Mooty, a law firm in Minneapolis and the author of digitalpassing.com, a blog that tracks these issues.

And if companies aren’t doing this for you, one of the surest ways to pass on content is to keep copies on your computer. You can make a habit of saving copies of important documents, sentimental photos, Facebook content or purchased content like music. One handy tool to capture web content is called ScrapBook, a free Firefox extension created by Taiga Gomibuchi, a programmer in Tokyo.

But if you download, make sure your material is secure. That means backing up to an external drive with programs like Apple’s Time Machine, or File History in Windows 8. Also, encrypt your computer’s disk and the backup drive. And if you share a computer, make sure your private content is secure, because another user with administrator rights may have access. Programs like 7-Zip can pack away confidential files in encrypted archives.

Some lawyers suggest including a digital executor in your will. This person is responsible for carrying out your wishes for your online content. This is no guarantee the content will be disclosed, they said, but it may help if laws eventually change.

“What would you want them to do if you were allowed to do it?” Ms. Hoexter said. This strategy includes creating a list of your online accounts, with passwords included, she said, and storing it where you can update it easily and your digital executor can find it.

Divulging your passwords is risky, of course, even to someone you trust. But there is no simple way to do this securely while ensuring your passwords are current.

Numerous online services offer features that can transfer passwords and other personal data after you die. PasswordBox, a password manager that hooks into your web browser, has a transfer feature called Legacy. SecureSafe, based in Zurich, offers a tool for transferring passwords.

Of course, putting information like that online exposes it to hackers, government snoops or even the unforeseen security bug.

Instead, you may choose to store passwords on your computer. Many programs are available, including Password Safe and KeePass. There are also encrypted portable devices like SplashID Key Safe. You can stash one in a fireproof box and give your master password to a friend or your lawyer.

The law may one day catch up with technology. But in the meantime, it’s wise to make sure you’re using technology to deal with the dilemmas technology has created.

What is Digital Estate Planning and Why Do I Need it?

What are digital assets?

Estate planning and administration professionals cannot ignore the ubiquity of digital assets. 2012 saw global sales of digital music amount to $5.6 billion and in some markets, including the US, India, Norway and Sweden, digital music sales exceeded packaged music sales. Meanwhile, e‐book sales represented an estimated 16%, and growing, of all book sales in Canada in 2012.2 Almost 18 million Canadians, more than half of the population, has an active Facebook account. The Bitcoin virtual currency has been featured regularly in the news as its exchange value skyrocketed from approximately USD$100 to USD$1200 late in 2013, before falling off dramatically again.

The term “digital assets” is used in different ways by different people. In a narrow sense, a digital asset has been defined as “any item of text or media that has been formatted into a binary source that includes the right to use it.”  In a broader sense, digital assets include all of the electronic “possessions” an individual may have, including emails, digital photos, videos, tweets, texts, songs and e‐books, as well as online account information for websites or programs such as Facebook, LinkedIn, bank accounts, PayPal and others.5 In this broader sense, digital assets are sometimes referred to as a “digital estate” or “digital legacy”.

Digital assets have three distinct elements:

  1. A digital file or record. This is the data that constitutes the content of the asset.
  2. The right to use the file or record. It has been noted that if there is no right to use a file or record, then it should not be characterized as an asset.Rights of use may derive from authorship or other ownership of the content (for example, emails or original documents), or may be granted by a licence from the owner or a third party licensor (as with most digital music or e‐books).
  3. A method of access. Assets may be categorized into (a) physically controllable digital assets (PCDA) which are stored on hardware to which the owner has access, and (b) controlled access digital assets (CADA) stored “in the cloud” on servers belonging to third party service providers and accessible on‐line with the use of a username and password.

Because the law applicable to digital assets is still developing, digital present unique challenges to executors, administrators, attorneys and committees. In addition, planning strategies for digital assets are rapidly evolving as the law, the e‐service industry, and user awareness of estate planning issues all mature.