What Happens to Your Online Life After You Die? The Hereafter Institute Helps Plan "Second Death"

What Happens to Your Online Life After You Die? The Hereafter Institute Helps Plan “Second Death”

What Happens to Your Online Life After You Die? The Hereafter Institute Helps Plan “Second Death”

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What Happens to Your Online Life After You Die? The Hereafter Institute Helps Plan
Courtesy Gabriel Barcia-Colombo

“Today we die twice,” is the Hereafter Institute’s tagline.

First we die physically, and then digitally. The Institute, the invention of L.A.-born, New York–based artist Gabriel Barcia-Colombo, exists to help people plan for their second death. Barcia-Colombo, currently a fellow in LACMA’s Art and Technology lab, has been developing his institute with the help of the lab’s resources and, this past weekend, offered the first official consultations to members of the public. Those of us who arrived for consultations would, we were told, learn about our options for a digital afterlife.

Barcia-Colombo is not alone in thinking about where data goes after death. Designers John Romano and Evan Carroll in 2010 wrote a book, Your Digital Afterlife, in which they explained to readers what a digital afterlife even was and how to prepare their accounts for death. Digital estate planning firms already exist but, as art, the Hereafter Institute can afford to be a bit sexier in its mood than existing firms, more about the futuristic potentials of virtual afterlife than the nitty-gritty details.

Gabriel Barcia-Colombo
Gabriel Barcia-Colombo

This past weekend, the lobby of LACMA’s Bing Auditorium served as the Hereafter Institute’s lobby. A desk in the back corner featured its logo, a bold, blue letter H with a gradient infinity sign snaking around its posts. Two women with white lab coats greeted me when I arrived, telling me that Alex would be my consultant. The consultants, all L.A. actors, worked half-day shifts, three of them taking appointments at a time. Cheerful and blond, Alex led me to the Japanese Pavilion, where we would start our session in the minimal conference room, with its drab sofas and big windows. Julia Irwin, a technician, sat at a desk in the corner; a big screen angled across the opposite corner. Alex explained, while referring to images on that screen, that I had three general afterlife options: Continuation, in which my digital presence continues after I die; Deletion, in which I hire the Institute to wipe away my digital remains; and Memorialization, in which I create some sort of memorial to my data.

In 2014, a guy named Nathan took to Reddit to complain that his dead girlfriend had continued to tag herself in photos and send him Facebook messages. The internet ate his story up, perhaps because it was a new kind of nightmare — the social media accounts of the dead taking on lives of their own. But Alex suggested to me that the Hereafter Institute could, potentially, help people create an avatar to message loved ones posthumously. It would be well-planned rather than creepy. To get started on the continuation path, Alex guided me through setting up a “legacy contact” for my Facebook account in case something happens to me, a feature Facebook already provides. Later, I would stand on a slowly spinning white disk in the middle of the room while Julia, the technician, scanned my body so that my digital likeness could possibly be preserved for posterity. We never got into how this avatar would function, nor how you could actually delete or partially delete your online presence, which is what I, as a potential client, wanted to know. I also wanted to know how much it might cost but, again, the Hereafter Institute is in the business of possibilities over logistics.

A view of the locket with video footage
A view of the locket with video footage

Two necklaces displayed against the back wall were memorial options, Alex explained. They looked like oversized keyless car remotes, screens at the center playing soundless home videos. The videos play randomly, and the necklaces store about an hour of footage each. An older man and a kid appeared on one screen, a young guy talking to the camera on the other. I tried to picture someone wearing this clunky, techy jewelry. What kind of conversations would start?

“Hey, what’s that you’re wearing?”
“It’s just, well, my brother died last month, and he left this behind for us. There are tons of videos of him on here.”
“What’s playing now?”
“Oh, looks like he’s saying stuff in mom’s kitchen.”
“What’s he saying?”
“No idea. These things don’t come with sound.”

Alex assured me another memorialization option did incorporate sound, and she soon led me from the Japanese Pavilion down past Alexander Calder’s fountain to the Art and Tech Lab. There, she showed me a tall, sleek black record player, perfect for some corporate guy with an aversion to a vintage aesthetic. The player’s base functioned as a screen, playing a deceased person’s Facebook timeline, one post at a time. Posts from a women named Stormy, who had a sense of humor, were playing when we arrived.

The sounds coming from the player are based on an algorithm and meant to correspond with the text — melancholic sounds for melancholic status updates, upbeat ones for upbeat updates. “Interesting how homogenous it sounds,” I commented. “It’s peaceful,” Alex corrected. I also wondered about the aesthetic. Were there other memorial models, or did everyone have to go with corporate sleekness? Barcia-Colombo, the Institute’s artist-founder, was there in the lab to answer this. He explained that this prototype was meant more as a public memorial, not a personal one. He had put out a call on Facebook, and people had volunteered their deceased family members’ profiles, so the updates I was seeing were from real individuals. This was about opening up conversations about death, Barcia-Colombo said, since we often avoid the issue.

A sneak peek at a new form of data monument celebrating the lives of those who have passed away but still exist on social media; vinyl records that are encoded with data through audio tones.
A sneak peek at a new form of data monument celebrating the lives of those who have passed away but still exist on social media; vinyl records that are encoded with data through audio tones.

Then I was putting on virtual reality headgear to briefly visit a virtual, marble lobby that looked like a mausoleum. An elevator door would open, briefly giving me a glimpse into a deceased person’s life. Barcia-Colombo’s grandfather, Spanish poet Jose Rubia Barcia, was one of the individuals, shown from the back seated at a desk. Clearly, the grandfather had no hand in this, and Barcia-Colombo acknowledged he had crafted this virtual space for the sake of his own remembering. But, hypothetically, you could do it for yourself, too; it would be the VR equivalent of a memoir. Or perhaps, eventually, you could go further. Neuroscientist Michael Graziano wrote recently in The Atlantic about the possibility of living after death in a simulated video-game universe. He suggested that brain scan technology probably could, a ways down the road, be used to preserve someone’s consciousness digitally, though we currently have no scanning equipment capable of capturing all the connections between the billions of neurons in human brains.

There is, then, the question of why you would want to keep living indefinitely as a digital simulacrum. Alex had surveyed me at the beginning of our session, asking if it mattered to me that my politics, creativity and personality be remembered. Those seemed like concerns that happily ended with death, when there was no further need to wonder how I came across or whether people liked me. Who would benefit if I kept dictating how I was perceived after dying?

HereafterLife: A VR experience where you can visit those that have passed in a virtual afterlife
HereafterLife: A VR experience where you can visit those that have passed in a virtual afterlife

My consultation ended in LACMA’s Brown Auditorium, where I sat alone in the front row and experienced a condensed version of my own funeral. “Catherine was beloved,” said a youngish emcee in a suit. He was at the podium, a screen behind him playing quotes from my social media platforms, thankfully almost all of them work-related. “Catherine loved art and culture, but people were most important to her,” said the emcee, an observation he backed up by reading my “favorite quote,” a line from my Facebook profile about how much better friends are than success. Then the screen went glitchy and the emcee slid across the stage, giving a panicked half-minute monologue about lack of privacy (“everything we do leaves a trace”). When the glitches cleared up, I saw a clunky, 3-D modeled version of myself awkwardly frolicking down a white plank that led into clouds. Quickly, Alex ushered me out the back door and thanked me for coming.

I imagined what I would say if I wrote a Yelp review: “The Hereafter Institute has some good ideas, but they don’t seem to be clear yet on what they’re actually offering clients. Are the record-player memorials just for public display or can they be individualized? How can I make my own virtual reality memoir? Also, the guy at the end seemed really freaked out about digital culture. Did he go off message, or does the Hereafter Institute think nervous clients will be more likely to enlist its services? I left feeling confused.”

Of course, disconnects and messiness are more compelling in performance art than in the service industry. As an art project, Barcia-Colombo’s Hereafter Institute seems mostly to underscore how little we actually know about how our data persists posthumously and how we should feel about it. Should we be concerned? Should we take control? Should we get off Facebook before someone bases a eulogy on our timelines? The latter option is tempting.

The Hereafter Institute is still in its early stages. Future consultations or services will likely be announced on its website.

Dangers of do-it-yourself estate planning

Dangers of do-it-yourself estate planning

Dangers of do-it-yourself estate planning

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In response to COVID-19, financial services firms and online companies are offering a variety of self-made digital estate plans. These low-cost plans entice anxious families to explore these options in an effort to avoid the expense of an attorney. Not everyone has the ability to correctly prepare their own documents even with the convenience of the templates offered online. Others, who try on their own, could create problems rather than solutions. It is not easy to correctly prepare estate planning documents without the aid of an attorney, but it is easy to make significant mistakes which can be costly to correct or cause irreparable damage.

One of the most common mistakes involves the misinterpretation and misunderstanding of legal terms and their significance in legal documents. What is “issue”? What are “heirs at law”? What do “per capita” and “per stirpes” mean? Oftentimes, incorrect assumptions are made about the meaning of these words and others or they are ignored and dismissed as “legal jargon”, inadvertently leading to an estate plan contrary to the intent of the grantor or testator, such as leaving assets to unintended beneficiaries.

In like manner, the disinheritance clause and no-contest clause, while often very important, are frequently misconstrued. Additionally, in self-drafted documents, the language explaining why certain people are not included is absent, consequently increasing the chances of litigation after the grantor’s or testator’s death.

Similarly, the language used by online companies or clients themselves is often vague and unclear, resulting in unnecessary conflict and, frequently, in litigation that was intended to be avoided and could have been avoided if the estate planning documents were correctly drafted by an attorney in the first place. Likewise, a failure to tailor the estate plan in accordance with the particular state’s laws can lead to mistakes and unintended financial and personal consequences.

It is not uncommon that online or self-drafted documents fail to appreciate the various tax implications involved in a client’s estate or fail to consider all the issues associated with minor beneficiaries. Also, frequently, while changing a provision in a document, a change is implanted only in one part of the document, leaving other parts of the document impacted by this change unrevised and, subsequently, creating several probable interpretations and questions about the grantor’s or testator’s intent.

Online estate plans rarely contain all the documents that constitute a comprehensive estate planning portfolio. Similarly, it is very easy for an individual to fail to appreciate the role of each separate document and their importance and relevance in each specific case. For example, an online trust document might be missing a property schedule or the health power of attorney might not contain all of the individual’s wishes and desires.

Lastly, the online or self-execution of the estate planning documents often occurs without observing legal formalities such as notarization and the presence of competent witnesses. This absence of legal formalities consequently creates an invalid and inoperative document.

In today’s world, it is tempting to prepare an estate planning portfolio yourself or online. Be aware that by doing so, you might be creating more complications than resolutions. It is worth it to get your estate plan done right the first time by an attorney.

Neal Stephenson Explains His Vision of the Digital Afterlife

Neal Stephenson Explains His Vision of the Digital Afterlife

Neal Stephenson Explains His Vision of the Digital Afterlife

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Digital Afterlife
Digital Afterlife

If humans could create their own digital afterlife, what would it look like? Would we build a radically new plane of existence unencumbered by the limitations of the physical world, or are those human imperfections integral to our existence?

This is the core question explored in Neal Stephenson’s latest novel, Fall; Or, Dodge in Hella sprawling sci-fi epic that hits shelves on June 4.

Fall is several books in one. The hybrid sci-fi/fantasy novel begins in the present day with Richard “Dodge” Forthrast, an eccentric multibillionaire who made his fortune in the video game industry. When a freak accident during a routine medical procedure leaves him brain-dead, his family is left to contend with his request to have his brain preserved until the technology exists to bring him back to life.

Welcome to Bitworld

The near-future world of Fall is full of familiar buzzwords and concepts. Augmented reality headsets, next-gen wireless networks, self-driving vehicles, facial recognition, quantum computing, blockchain and distributed cryptography all feature prominently.

Stephenson also spends a lot of time examining how the internet and social media, which Dodge and other characters often refer to in Fall as the Miasma, is irrevocably changing society and altering the fabric of reality.

Fall; or, Dodge in Hell
Fall; or, Dodge in Hell

Over the ensuing decades in which the story unfolds, Dodge’s family members—in an uneasy partnership with a mysterious, reclusive tech billionaire named Elmo Shepherd—and the tech industry at large develop the technology to map Dodge’s brain and turn it back online in the cloud. Once Dodge’s digital consciousness is up-and-running, thousands of other souls join the evolving AI landscape that becomes Bitworld.

Then, the book slowly becomes something different. As more human brains are scanned into this artificially created afterlife powered by quantum servers around the globe, we spend less of the book in “Meatspace” and more time in Bitworld. The second half of Fall is part digital creation myth and part biblical epic. Stephenson explores themes of human nature, gods and followers, and tech-fueled immortality through a sprawling quest that unfolds across a medieval-feeling fantasy world that happens to be digitally generated.

Stephenson is no stranger to combining hard sci-fi with biblical and historical undertones. Beginning with his debut novel Snow Crash in the early 90s, the author has written numerous speculative fiction and cyberpunk novels, including Seveneves, Anathem, ReamdeCryptonomicon, and many others. Stephenson also spent years as an advisor for Amazon CEO Jeff Bezos’ private space company Blue Origin, and serves as Chief Futurist for spatial computing and mixed reality startup Magic Leap, among other work.

We spoke to Stephenson recently about Fall, the concept of a digital afterlife, and how technologies like AR/VR and quantum computing could transform society. The interview also touches on how Snow Crash holds up more than a quarter-century later, the status of his Amazon Prime Video’s series adaptation, and why he believes social media is a doomsday machine.

Inside Neal Stephenson’s Mind

PCMag: So many tech and digital culture concepts are packed into the first few parts of Fall, but I want to start with the “Miasma.” At the beginning of the book, life is essentially as it is today. There are smartphones, social media, and the internet, with ubiquitous sites like Amazon, Facebook, Twitter, and Wikipedia namedropped throughout. How would you describe the current state of the internet? Just in a general sense of its role in our daily lives, and where that concept of the Miasma came from for you.

Neal Stephenson: I ended up having a pretty dark view of it, as you can kind of tell from the book. I saw someone recently describe social media in its current state as a doomsday machine, and I think that’s not far off. We’ve turned over our perception of what’s real to algorithmically driven systems that are designed not to have humans in the loop, because if humans are in the loop they’re not scalable and if they’re not scalable they can’t make tons and tons of money.

The result is the situation we see today where no one agrees on what factual reality is and everyone is driven in the direction of content that is “more engaging,” which almost always means that it’s more emotional, it’s less factually based, it’s less rational, and kind of destructive from a basic civics standpoint.

Neal Stephenson
Neal Stephenson

Neal Stephenson (Credit: Brady Hall/AP)

PCMag: As the book progresses, we get this scarily realistic depiction of the spread of misinformation on the internet, the ripple effects of trolls, and the power of information warfare. In this case, it all centers around simulating a nuclear explosion in the remote town of Moab, Utah, that decades later, truthers still believe happened. What’s the larger message you were trying to get across through the Moab hoax?

NS: Well I try not to be too message-y, because I think that people tend to turn on their deflector shields when they see that coming. But actually when I originally wrote an earlier version of the Moab section, it was prior to the events of the 2016 election and at the time I sort of was patting myself on the back for really being on top of things and predicting the future. And then I discovered that the future was way ahead of me.

I’ve heard remarks in a similar vein from other science-fiction novelists: do we even have a role anymore? So I had to rework that, I spent a fair amount of time reworking the Moab thing to make it less of a prediction and more of a kind of metaphorical statement about where we are.

PCMag: I feel like it’s a common sentiment nowadays to joke about burning the internet down. You got to imagine the particulars of how that might actually be done, which is basically to lean into the skid. Flood the net with bots and toxic posts that drown out real harassment and doxxing to the point where nothing is discernibly real or true anymore. Doesn’t that seem like the way the internet is going anyway?

NS: It’s happening anyway, yeah. The advantage of fiction is that you can make these things happen in a way that’s a lot simpler and cleaner than whatever happened in real life. This is actually a really old idea that I first heard about from Matt Blaze in the mid 1990s when he was talking about the concept called the Encyclopedia Disinformatica, which would just be a sort of fake Wikipedia containing plausible-sounding but deliberately false information as a way of sending the message to people that they shouldn’t just believe everything that they see on the internet.

How Google's Jigsaw Is Trying to Make the Internet Less Toxic
How Google’s Jigsaw Is Trying to Make the Internet Less Toxic

So people like Matt were talking about that more than 20 years ago, and it never quite happened. But to follow the internet stuff that’s in this book, it performs a couple of functions. One is just pure wish fulfillment: “Wouldn’t it be cool if… ” but it’s also actually kind of needed in order to set up the technological basis for Bitworld.

PCMag: Before all the Bitworld stuff gets into full swing, part three of the book felt like its own little dystopian microcosm taking those ideas we just talked about to the extreme, with a lot of fascinating tech elements thrown in.

One is this idea of the “post-reality” world, where everyone walks around with AR headsets running their own curated “edit stream” of algorithmically driven content and information keeping everyone in their own personal bubble of reality. The rich can afford their own personal “editors,” and everyone else is subscribing to mass streams. You wrote about the world becoming “Facebooked down to the molecular level.” Can you unpack that concept?

NS: I think the only way to get good content out of the internet is by having humans in the loop. The reason that social media systems are architected the way they are, as I mentioned before, is because humans are expensive and you can’t scale that kind of system to serve billions and billions of people. What that kind of implies is that if you did want a curated, edited stream, that you would have to pay for it.

So that means that access to that kind of higher-quality view of the world becomes a class-based situation where people who’ve got the money to pay for or partially pay for human editors and curators are getting higher-quality info, which I think is just a slight kind of magnification or intensification of the way things are now anyway.

My big picture view of this is that broad access to the facts is empowering to everyone who can get it. The broadening of that power base to include more people comes at the expense of the oligarchs of the world, who are always going to be able to reap power, wealth, and benefits from keeping everybody else in the dark.

PCMag: Let’s get into the digital afterlife. First, talk about how you went about creating the technology for it to exist. One side of that is the neurobiology: using ion beam technology to scan a human brain’s connectome (a map of all the neural connections in a brain) and re-animate human “souls” virtually.

NS: That’s all real stuff that people are working on. People have differing opinions about what consciousness is and how it works. Some are more deterministic—they think the brain can be digitally modeled and simulated if you just have enough information about how it’s hooked up. Others feel it takes a lot more information than simply knowing how neurons are wired.

10 Steps to Adopting Artificial Intelligence in Your Business
10 Steps to Adopting Artificial Intelligence in Your Business

I was trying to do a kind of experiment. What if someone who believed in the connectome had a device capable of scanning them, and then someone tried an experiment in booting one up. There’s so much debate and uncertainty as to whether that would actually work at all, and it seemed to be an opportunity to have some fun as a novelist.

If everything worked perfectly you would just have a very clean reboot and suddenly Dodge would wake up and his voice would come out of a speaker. But there’s enough ambiguity and debate about how all of this actually works that it gave me a way as a novelist to introduce all kinds of trouble, misunderstanding, and complication.

PCMag: Then there’s the quantum computing aspect. Bringing these quantum server farms online that can simulate the whole connectome of firing neurons, and scaling that up to thousands and millions of soul processes. In the context of all the other tech you’ve brought into this book, it doesn’t sound all that farfetched. What are some of the other applications you envision being possible when we finally unlock true quantum computing?

NS: A big controversy that I didn’t really want to touch on in this book, because it would have been just a red herring, is whether brains are quantum. Is the brain strictly a classical system, or do you need to use quantum mechanics in order to explain what the brain does? One thing we do know about quantum computers is that once we can get them to work, which is no small task, they will be unbelievably fast and increase available computing power by orders of magnitude compared to traditional computers.

It was clear that in order to tell any kind of remotely plausible story about simulating a whole world, bringing back all of these scanned connectomes, and getting them all working, is that it would take a completely ridiculous amount of computing power above and beyond anything that we’ve got now. So the notion of widely available quantum computing server farms was sort of my explanation for how that could ever happen.

PCMag: The first glimpse we get of Bitworld is this newly sentient virtual mind conceiving its surroundings, its being, and its ability to think and create and learn and adjust in the midst of endless chaos. It was fascinating stream-of-consciousness writing to encapsulate cognition. That must’ve been a really tricky part to write.

NS: When I was younger, I had nightmares that were kind of like those parts of the book. It was this endless world of static, just white noise. That’s where the basic idea came from. The conceit of the book, which is not based on any real neurology by the way, is that the freshest memories, the last few things you saw before you died that made an impression on you are the ones that come the most readily back when you get rebooted.

So one of the last things that Dodge sees before his demise in Meatspace is a red maple leaf, so that’s the first thing that he sees that’s not just sort of white noise, is a little red mote. And he passes onto that, expands on that and develops into a leaf and then into trees and then the whole world kind of is seeded out of that one little perception.

Generic Artificial intelligence
Generic Artificial intelligence

PCMag: Then you get into the actual creation of Bitworld; building this virtual space with permanent characteristics that these rebooted minds can make sense of. I won’t get into too many of the plot details of the ages and arcs of Bitworld, but the whole point is that it starts to exhibit all the problems and evils and imperfections of the real world. Why create an afterlife so tied to the conventions and realities of life, versus some completely new fully actualized plane of existence?

NS: That is the question that characters in this book are directly asking, right? So Elmo Shepherd is taking the point of view of “Why just reproduce what we’ve already got? We should do a clean start and make something new and different.”

A way to answer your question is to look at our own creation myths. Very commonly, what we see in the Bible and in Greek myths and other mythologies is this idea that things got created somehow but something went wrong. There were imperfections in the world but then propagated out or it just became part of the fabric of that world. So in Greek myths you’ve got Pandora’s Box, for example, which happens pretty early in the timeline of that mythology and its storytellers try to explain the problem of evil and why things aren’t perfect.

In the Bible you’ve got Adam and Eve and the serpent and all that stuff. So it’s a common feature to most mythologies that things may have started out in this sort of perfected form but then at some point bugs get introduced and the bugs never get debugged, and that explains a lot of human nature and why things are the way they are.

PCMag: As Bitworld becomes humanity’s priority, Meatspace changes radically. You had that line about death being disrupted, and the living haunting the world of the dead like ghosts, watching what’s happening in Bitworld. People don’t go to the office: it’s all telepresence robots, video conferencing, and AR. People buy online and have it delivered by drone. Protecting their brains to live forever is more important than living life. When we have those brief glimpses back into what’s happening on Earth decades and decades later, what’s kind of left for the dwindling population there?

NS: As time goes on, it could lead to is a future world where there’s maybe just a handful of surviving humans and all they do is look after the robots that look after the other robots that look after other robots that look after the machinery. It’s not quite a Dyson Sphere—I didn’t want to take it that far into the future—but what’s generally happening during the last half of the book is that the events of Meatspace are becoming less and less front-and-center as the number of characters there dwindles as they find their way to Bitworld.

So Bitworld kind of becomes the main story, and it’s a different kind of story. I think an aspect of this novel that is surprising and challenging to some readers is “Hey, wait a second it started out as one kind of book and by the end it’s a different kind of book.”

PCMag: You stuck a fantasy novel inside a sci-fi novel.

NS: It’s kind of a weird move. But my hope is that a lot of readers will sort of get the joke in the sense that fantasy and science fiction, those genres have always been kind of weirdly coupled together. On the surface they seem like very different things; one’s about magic, one’s about technology. And yet it is the case that they appeal to the same people.

Well we’re in kind of a golden age of epic storytelling with Game of Thrones, Star Wars, and the big storytelling universes that people can go into in great depth. Hopefully this will help scratch that itch for some readers.

PCMag: I’m also a big fan of other works of yours like Snow Crash, for instance. So much of how you depicted virtual reality more than a quarter-century ago holds up in how the tech functions today. Last year I wrote a story on Amazon’s AR/VR app creation platform called Sumerian, which the execs said they actually named after Snow Crash. I was just curious if you were aware of that, and what you thought about it?

They actually gave me a pint beer glass with Sumerian writing etched on it to commemorate that. So yeah, I was aware. As for how it’s held up, I think some aspects of it going back, I was reasonably close to the mark and in other ways it all came out very, very differently from where I was going at the time.

I believe it’s the case that the word internet doesn’t even appear in Snow Crash. I’d heard the term when I wrote it, but it was not really a thing then. So the system that’s described in Snow Crash is a lot more centralized and proprietary, at least in theory, than the internet we ended up with. So although the internet has kind of tended to evolve away from the kind of highly distributed idealized vision that it started out with and towards a state now where it’s dominated by a few big players.

PCMag: Lastly, we haven’t heard much about Amazon Prime Video’s Snow Crash series adaptation in a while. Can you confirm whether that’s still in development, and if there are any updates on when we might see it?

NS: It’s going through another round of a reworking at the moment, so I guess the most I can say that’s kind of informative is there’s not anything happening real soon now. There’s no impending news coming up in the near future on that, but it’s still in development.

Fall; or, Dodge in Hell will be available in stores on June 4, but you can pre-order a physical copy or get access to the audiobook and ebook versions on Amazon.

INSIGHT: Supporting Your Clients’ Digital Legacy

INSIGHT: Supporting Your Clients’ Digital Legacy

INSIGHT: Supporting Your Clients’ Digital Legacy

Click here to view original web page at INSIGHT: Supporting Your Clients’ Digital Legacy

The proliferation of digital footprints in our online communities raise demand for consumer tools and options for dealing with digital assets upon incapacity and death. Is your business ready? Trust and estate practitioners (TEPs) Jennifer Zegel and Sharon Hartung say retain them while they’re living; make it easy for loved ones when they’re dead.

Since the mainstream adoption of the Internet, most consumers’ online relationships with retailers, financial institutions, and the government has skyrocketed. Many companies and institutions from household utilities to small entrepreneurs are encouraging, if not pushing, their clients to digital interactions enhancing convenience, brand loyalty, and the user experience. Online money management, bill payment, client communications, service or product ordering and fulfillment not only save administrative costs, but for businesses to remain competitive in the digital age, they are table stakes. All the while, consumers are amassing a broad new spectrum of digital assets with financial and sentimental value.

Over this past year, there was an unprecedented number of reports on the growing number of profiles of dead people lingering on social media platforms like Facebook. If you’re in the tech sector, or a business relying on the Internet, the burgeoning interest in consumer rights upon incapacity or death should be on your radar. It might appear as an isolated social media problem, but consumer estate planning questions will hit your business sooner than you realize, if they haven’t already. Despite the ease and convenience online activities offer individuals while they are living, things get complicated upon incapacity and death. Transferring a person’s digital life––assets, accounts, and identity while preserving a digital legacy after death is just not that simple, and the issues raised are relatively novel in uncharted territory.

Digital assets and why consumers should care about service provider engagement?

(Throughout this article we’ll refer to businesses and organizations that provide online services or hold digital assets as “service providers.”)

There are various definitions of digital assets depending on the global source cited. The U.S. definition, under the U.S. Uniform Law Commission’s model legislation (RUFADAA), digital assets are defined as “an electronic record in which an individual has a right or an interest. This term does not include an underlying asset or liability unless the asset or liability is itself an electronic record.” RUFADAA defines electronic, “as relating to technology or having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.” These definitions are intentionally broad to account for future expansion of this asset class. Digital assets are all of the data saved on computers and devices, information accounts, and communications managed online; however, devices, smartphones, and computers are not considered digital assets.

In consumer vernacular, digital photos; loyalty or reward points; access to online banking; unregulated crypto currencies; gaming tokens; cloud repositories; electronic books and music; social media accounts; loyalty programs; websites; trademarks; social media accounts and other digital assets associated with a monetary value that are maintained or managed online or electronically are considered digital assets. As with physical property and property rights, consumers will have wishes and expectations for their digital estates, and will want to define who gets their loyalty points or crypto assets after they are deceased, and whether or not they want their social media lives to carry on into perpetuity.

What is unique for consumers about digital assets upon incapacity and death?

Jurisdictionally there are a number of laws that could impact a user’s digital estate during life and death. Depending on the type of asset and its use will determine what happens to it upon the owner’s death. Fiduciary access laws outline what the executor or attorney is allowed to do with digital assets, and jurisdictional legislation can differ from one country to another. In the U.S., almost all the states have adopted a version of RUFADAA that defines what actions a fiduciary is permitted to take. Many people don’t realize that not all digital assets and accounts can be conveyed without pre-planning in advance of incapacity or death.

Digital assets, accessed or managed by an online provider, are subject to Terms of Service Agreements (TOSAs) that may limit the user’s right to transfer the asset or account. As of this writing, the majority of U.S. states have adopted a version of RUFADAA that provides a hierarchy for fiduciary access to digital assets: online tools (below defined), estate planning documents, and TOSAs. Regardless of jurisdictional laws and TOSAs, the implication for global businesses and online providers is that consumers, once more fully aware, will desire more options to maintain their digital assets and legacies. We further expect consumers will seek and expect the same spectrum of options for their digital assets that are available for traditional estate planning of physical assets.

Digital assets by their nature are virtual and may be difficult to find without a paper trail. There is a misconception that leaving passwords for the fiduciary is the simple solution, but passwords can’t convey important user wishes upon death. Consider what happened the last time you lost a password or got locked out of an account. Was it a time-consuming hassle to reset account access? Probably. However, the inconvenience experienced in regaining access will pale in comparison to the potential access problems likely to be suffered by your fiduciary (executor or agent). Unauthorized access, even with a password, could also be a breach of TOSAs or may be a violation of other laws, such as the U.S.’s Computer Fraud and Abuse Act, and the Stored Communications Act. In general, the lack of ability to share passwords and by implication the contravention of TOSAs is a global problem and major constraint to accessing most online accounts and digital assets after death, even by the decedent’s fiduciary.

As a result of these unique features of digital assets, clients and consumers will expect options and pre-planning tools for their digital assets and digital footprints. Addressing these new requirements can provide companies a competitive edge or brand advantage over the competition. If a consumer is presented the option of using a vendor that forces loyalty points to expire on death, or the provider that allows the selection of a beneficiary for accumulated points upon death—which business would you choose?

The unintended consequences of digital assets upon incapacity and death.

New heights of online convenience and competitive necessity is snowballing into explosive growth of digital assets creating the urgency for digital estate management similar to physical asset management. But, according to the AARP, less than 60% of Americans have a will. This statistic is similar in Canada at 50% and the UK at 54%. It will become common practice that when creating a general estate plan –– financial powers of attorney, wills, and trusts that you will also include provisions for a digital estate plan addressing digital assets, electronic communications, online accounts, and digital identities. Without an integrated estate plan, the estate could be left with the unintended consequence of the inability to close the estate in a timely manner or suffer a loss of assets.

A digital estate plan should contemplate and address access and/or disposition of the following:

  • digital assets that have some form of exchange or financial value, such as loyalty points, travel rewards, cryptocurrency, gaming tokens, and the digital assets of a business;
  • digital assets having sentimental value such as digitally stored photos and videos, cloud storage, and social media accounts; and
  • privacy, cybersecurity, and risk concerns over digitally stored information and content, and the protection of digital identities at incapacity or death.

With heightened awareness of digital estate planning, consumers will demand more choices than what are currently available by service providers to pre-plan or address online access to digital assets and accounts after incapacity or death. For the few that do offer pre-planning, such as Facebook and Google, most consumers are either unaware or have not activated these choices. Facebook and Google offer Legacy Contact and Inactive Manager, respectively, which are online tools provided through their platforms to designate third-party account access or management, such as instructions for account deletion. Under the U.S. RUFADAA, an online tool is an agreement between the user and service provider, separate from the TOSA, that allows the user to authorize or not authorize a third party to access a user’s digital assets.

Options for third-party authorized access isn’t yet an industry priority. However, consumer demand amplified by social media will continue to grow and ultimately reshape the estate planning process and the death care industry. The death positive community (#deathpositive) is a movement spreading across many parts of the world aimed at reshaping the cultural taboo surrounding the discussion of death and death planning. Recently, Twitter announced they would shut down inactive accounts after six months, but after a raging tweet storm, they subsequently retracted their statement and instead will be looking at pre-planning options. According to a study out of Queen Mary School of Law Legal Studies (Beyond the Cloud Research Project), very few cloud providers have addressed in their TOSAs what happens to an account at the holder’s death, never mind addressing incapacity issues and the broader business community considerations in these matters.

Writ large: the tech industry needs to learn more about estate planning; and the estate planning community needs to learn more about tech.


Addressing digital assets as a strategic advantage

It’s likely to evolve to best practice that providers should offer pre-planning options allowing the account holder to direct instructions for their digital assets and online accounts upon incapacity and death.

To seed this discussion, we looked to several sources:

  • providers currently offering pre-planning;
  • emerging tech entrepreneurs;
  • traditional estate planning constructs; and
  • future tech and conjecture on their models to address pre-planning.

These ideas must be driven by consumer preferences and industry willingness to provide. But, consumers will have skin in the game: if these concepts are developed and offered, user engagement will be required for set-up; potentially with a price; and effort for integration with other estate planning. Any new concept requires testing and balancing with jurisdictional, legal, fiscal, risk, and other business constraints. Consider the following concepts as a starting point for this emerging requirement:

1. Updating Terms of Service Agreements or Terms of Use Agreements to address incapacity and death

Service providers, and businesses generally, should consider including terms and conditions that specify what will happen upon incapacity or death of the online account holder, or the owner of any digital assets held by the custodian, and if access will be granted to a fiduciary of the account holder in the absence of utilizing an online tool. Service providers should also analyze what happens to digital assets, accounts, and information (especially, personal and private information of an account holder) if the company ceases operations or if the account is inactive for an extended period of time. Further analysis on whether or not updates to TOSAs should also lead to reshaping policies on data privacy and storage of consumer information to comply with other jurisdictional laws, such as the European General Data Protection Regulation, or the California Consumer Privacy Act. Even if businesses may not currently be subject to such laws, as privacy and data protection laws spread to more jurisdictions, compliance will likely be required by more businesses.

2. Pre-planning tools and user selected options for online accounts

More service providers should consider incorporating online tools in their platforms to allow the original account owner more options and choices to pre-select what happens to the account or digital asset and/or who has access in the event of both incapacity and death. Just as you would expect for traditional estate planning, consumers may want to identify alternate individuals to have access to the accounts if the first choice is also deceased and/or incapacitated. Ideally, these options would also consider the specific differences between incapacity and death, and provide realistic timelines for a fiduciary to have access to digital accounts, assets, or information given the immediacy the fiduciary will need to access this information to meet the administration requirements of the fiduciary to manage the account holder’s assets upon incapacity or death.

Currently, some service providers offer a distinction between business and personal user accounts. Business user accounts often have additional functionality such as administrator access, third-party access and other constructs that facilitate business succession planning and multiple user access. Similar options or functions could be potentially extended to personal accounts.

3. Joint account ownership of online accounts

This concept would be similar to joint property ownership rights, where two or more people can sign up for an online account, such that when one of the owners die, the remaining members retain full access and rights to the contents of the account or digital asset. This is akin to owning other forms of property (real estate and bank accounts) as joint tenancy with rights of survivorship. This option, if permissible by service providers, would likely require each joint account holder to be assigned their own unique username and password to avoid issues stemming from sharing of passwords, impersonating a user, and unauthorized access issues. This type of option should also consider how to separate a joint account at a later point if the owners no longer want it to be joint.

4. Beneficiary designation(s) for online accounts

This concept is similar to the construct found with insurance policies, registered/non-registered plans, or pension plans held by clients where the account holder pre-selected a beneficiary as having rights to the digital asset or online account after death. A beneficiary designation is slightly akin to using an online tool to designate what happens to an account with a service provider. However, in the situation where the digital asset is not subject to TOSAs, having the ability to designate a beneficiary that is attached to the digital asset could streamline access and transfer of the asset.

A simple example would be building a beneficiary designation into options under consumer loyalty points or travel reward programs. A more complex example would be incorporating a beneficiary designation into the code of a smart contract. A smart contract is a legal agreement reduced to code using “if this, then that” statements. However, it is important to keep in mind that the rules of code and the rules of the law don’t always align and special care is needed to ensure assets transferred in this manner would still be subject to all the requisite income, estate, and inheritance taxes, or other transfer taxes.

5. Digital trusts

Another concept would be to allow for the creation of a trust relationship that is structured to allow for the transfer and management of online accounts and/or digital assets of an individual(s); or is created to be the recipient of online accounts and/or digital assets of an individual at incapacity or death. This type of structure today would likely be a violation of certain TOSAs, which would need to be analyzed and updated before accounts could be opened or moved into a digital trust. However, for digital assets not subject to TOSAs (or not in violation of them), this could be a great way to pass on digital assets and information to the designated beneficiaries of the trust in a streamlined and efficient manner. There are many ways this type of trust could be structured and an estate planning legal advisor (e.g., attorney) should be consulted in connection with this planning option.

6. A limited liability company to own digital assets and accounts

Using U.S. terminology, this would be similar to creating a trust to hold and manage digital assets, accounts, and information; an entity as opposed to a trust could be established for the same purpose. As mentioned above, some service providers offer business accounts that allow secure multiple users access. By creating such an entity, in theory, there wouldn’t be access issues if an account holder dies or becomes incapacitated since anyone authorized on behalf of the entity can access the account. The entity could be transferred or ownership interests changed without disrupting access to the assets. TOSAs would need to be analyzed and updated to allow for these kinds of accounts.

7. Custodian, commercial, or government recognized third-party services

We have already seen the emergence of tech entrepreneurs offering estate administration platforms. Described in a STEP Journal article called Bolster Your Digital Armoury, they are referred to as “Service Provider Digital Vaults” and “Smart Digital Vaults.” The general idea is these firms provide a pre-planning platform which offers functionality such as identifying digital assets, capturing wishes, documenting directives, all without the general need of account holder passwords. In some cases, they then offer administrative support services upon the incapacity and/or death of the account holder.

To illustrate other innovation we might see in the future, consider for example, the use of single sign-on (e.g., signing onto an account using your credentials to a third-party account). This is a popular method for accessing various online accounts through access authentication by an intermediary single provider. We expect to see similar approaches to consolidation of access and extensions to the digital estate planning space, such as signing up with one provider that manages estate planning options and choices across multiple providers. Similar in concept to outsourcing, these custodians, commercial or government recognized third-party services contemplate that service providers may not want to create their own options and services and would prefer to buy or procure that service. Further the end consumer may wish to set up and procure services in advance with one solution instead of dealing with multiple service providers.

8. Future estate tech

Innovative solutions are emerging but we’ve yet to see radical adaptation such as electronic wills on a blockchain, tokenization of assets, smart contracts, or smart wills that encapsulate probate processes.


Digital solutions need balance:

Within a business context all new concepts are moderated by less visible but equally important issues such as legal compliance, marketability, budgets, security, and privacy considerations. To complement the concepts offered above, here are some additional thoughts:

1. Jurisdictional laws

TOSAs and other pre-planning options will need to address and clarify which jurisdictional laws apply, and will need to consider highlighting or identifying processes for dealing with cross-jurisdictional issues or conflicts of law that will likely occur. Situations frequently arise where an account owner is in one jurisdiction, and situs of the business (provider or custodian) providing the online access or holding the digital asset is in another. Digital assets by their nature are often borderless and there is no uniformity or consistency in the treatment of digital assets from jurisdiction to jurisdiction in connection with legal access, transfer of property rights, and tax treatment. Privacy laws of varying jurisdictions may also need to be considered in establishing pre-planning options to ensure compliance with those laws which could impact other jurisdictions. Intellectual property rights laws may be involved with physical assets that have digital counterparts or associated digital assets.

2. Appointment conflict with fiduciary

If service providers or businesses include a pre-planning option to allow owners to appoint a third party to access the account or asset of the owner at death or incapacity, service providers should also highlight conflicts and consequences that may arise if the designated third party is different from any legally named fiduciary. In the U.S., information regarding the hierarchy of fiduciary access to digital assets under RUFADAA should also be provided if applicable, and if not, the laws that govern access should be made available. If the online tool offers options to appoint any individual who might not be the fiduciary, the service provider should also be given information about the potential conflict when the third party designated in the online tool is not the fiduciary appointed in a power of attorney, a will, or a beneficiary under the will.

3. Challenges dealing with the volume of online accounts and digital assets

The fact that consumers are accumulating a growing volume of online accounts and digital assets has already spawned tech solutions such as password managers, and in the estate planning space as mentioned above, digital and custodian vaults. Further, there are solution specific options emerging for certain types of digital assets such as unregulated cryptocurrencies. If you consider we’ve already seen account access move to single sign-on through intermediaries, the benefit for the client is the ability to manage a larger volume of unique usernames and passwords for a variety of accounts. Conceptually, we expect that similar solutions and creative options will also need to emerge to address the growing volume and differences among planning for consumer online accounts and digital assets.

4. Solutions and processes to deal with online accounts that provide access to underlying assets

A tricky area, but the best example is financial institutions that provide their clients online access to banking and money transfer services and functions. Fiduciaries should not be accessing these accounts using another person’s username and password and should go to the underlying institution with the proper document to address access. With the fiduciaries’ traditional role now frustrated with the lack of a paper trail and only a digital trail, financial institutions and insurance companies among others with underlying assets will need to consider how to address inquires for information and access. First, we expect that institutions will see a larger volume of fiduciaries on fishing expeditions looking for underlying assets of an incapacitated or deceased person. Secondly, the institution’s interaction with the named fiduciary will most likely require authentication; completion of forms and documentation; all which offer an opportunity for automation to reduce errors and improve processing times. We expect this will drive underlying asset providers to consider offering pre-onboarding processes and tools for named fiduciaries.

5. This is not an estate industry problem

All online and digital asset businesses will eventually need to address these client requirements for clarity upon incapacity and death. Considerations include estate industry cooperation, collaboration, or forums similar to other cross-industry or industry-specific groups established to address common challenges or interoperability. Minimally, what is required is consistency in terminology. Ideally there are industry forums or industry standard organizations that will result in the standardization of options and terms to reduce confusion and improve consumer adoption and compliance. These forums will also address where these solutions and options fit within the context of estate planning, as well as jurisdictional laws and rules. There will be a number of areas to address, such as user names; how does the account owner, and subsequently the fiduciary, prove that the account owner set up or held a specific account that is often identified by the username that may be different than the account owner’s legal name.

Many businesses have not given adequate consideration to how online accounts and digital assets will be handled upon a client’s incapacity and death. Consumers need to be more educated on the need for digital planning, and we have yet to see cases tested on jurisdictional laws that govern digital accounts and assets. There is an opportunity for businesses to lead in defining a new path for this space. In time, addressing these issues will be critical for online service providers as consumers’ digital footprints grow and the population ages. Consumers and their beneficiaries will expect the same spectrum of options they are accustomed to for physical assets and will not be quiet about the inability for their fiduciary to transfer and access their digital assets and accounts upon incapacity and death, and will likely take to social media to express their displeasure with the lack of available options.

The opportunity, in the short term, is for businesses to engage clients in a conversation about what planning options they would like for their digital assets and accounts. Just like other criteria a consumer considers when deciding which company to do business with, the preservation of either financial or sentimental value of their digital assets and accounts will factor into decision making. As we’ve seen in other industries, there is an opening for businesses and organizations to partner and collaborate in defining common terms, developing standards, and optimally the synchronization of options to reduce cost across the entire estate industry. There is also an opportunity to define and differentiate competitive advantage, get engaged, and lead on the topic of digital estate pre-planning before someone else does.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Sharon Hartung, Captain (Ret’d) Royal Canadian Air Force, TEP, is the founder and principal of Your Digital Undertaker and has over 30 years of experience in IT management, project management and consulting. She is the author of the recently published Your Digital Undertaker — Exploring Death in the Digital Age in Canada. Sharon is a Society of Trust and Estate Practitioners (STEP) member and committee member of the STEP Global Digital Assets Special Interest Group. Sharon is reachable at www.yourdigitalundertaker.ca, and Twitter @UndertakerTech.

Jennifer L. Zegel, Esquire, LL.M., is the Practice Leader of Kleinbard LLC’s Trusts and Estates Group. Jennifer maintains a traditional estates and trusts practice but is unique in that she has a special focus in estate and business planning and the estate administration of digital assets, a fast growing and increasingly complex area. Jennifer co-created the Digital Planning Podcast (DPP), which is dedicated to exploring all things digital in connection with estate planning, business planning, and estate administration. Jennifer is a Society of Trust and Estate Practitioners (STEP) member and committee member of the STEP Global Digital Assets Special Interest Group. For more information on Jennifer, The Digital Planning Podcast, and Kleinbard LLC visit the Firm’s website at www.kleinbard.com.

Disclaimer: The intent of information provided in this article is to encourage individuals, businesses and organizations to consider the importance of digital assets in the context of a will, estate planning and estate administration. The authors do not warrant or guarantee the accuracy or currency of the information provided herein. The laws in a jurisdiction change and are potentially different than what was presented here. The authors are not providing advice, and you are encouraged to seek qualified professional advice authorized in your jurisdiction for your sp