Who will get your iTunes when you die?

An electronic immortality

Human fascination with immortality stretches back to the time of Greek mythology with history littered by charlatans, oddballs and megalomaniacs either claiming or seeking the secret to eternal life.

However, the modern tech-savvy generation has discovered, quite by chance, that an immortality of sorts is now freely available via the digital footprint they leave should they meet an untimely end.  It’s estimated that on Facebook alone, more than 30 million accounts belong to people who are deceased.

As if the pain of coping with the death of a loved one isn’t difficult enough, friends and family must now consider the implications of the deceased’s online life to go with their material existence.

Your online footprint
Think for a moment about your own digital presence.  You’ll almost certainly use online banking and shopping facilities, perhaps an online wallet like PayPal, email accounts, a frequent flyer program, a social media presence via Facebook or Twitter, along with potentially thousands of personal files, receipts and photographs.

Most people already understand the importance of estate planning to help pass on worldly goods such as housing, savings and mementos to their beneficiaries.  But how will your heirs even gain access to your computer and your passwords?

Like so many laws relating to the digital world, many are outdated or irrelevant, and several online services have already established their own policies.  For instance, Twitter allows family or friends to download a copy of your public tweets and close your account.  You need to nominate someone in advance to provide their name and contact details, their relationship to you, your Twitter username and a link to or copy of your obituary.

Digital executors
No laws currently exist in Australia to grant a Will’s executor automatic access to someone’s social media accounts.  However, there are still several options available to help decide on how your online legacy is managed.

The first step is to create a Digital Will.  In addition, you will need to select a trustworthy digital executor to handle arrangements for your digital assets and digital legacy once you are gone.  Similarly, if you run your own business, it will have its own digital incarnation and its own digital legacy to maintain.  Some Australian Will makers offer Digital Wills so people can ensure their online legacy lives on – or fades away – in accordance with their wishes.

Online vaults for safe storage
An increasingly popular alternative is to store important documents and passwords in an online vault.  The likes of SecureSafe, Legacy Lockboxor Assets in Order pledge to provide secure online storage of passwords and documents.

Password management accounts can be set up using software such as Norton Identity Safe while Google recently introduced a new program called Inactive Account Manager, which enables you to choose in advance exactly what you wish to have done with all your Google data – from Gmail accounts to YouTube videos.

Considering how much of our communication takes place online these days, it’s worth investing some time thinking about your digital footprint and what is required to manage it when you’re gone.  A good time to do this might be when next reviewing your Wills and Powers of Attorney.  With a little thought and preparation, you can leave a lasting legacy to your loved ones, well beyond photos or videos, and avoid complications associated with your ‘digital immortality’.

Is Your Digital Life Ready for Your Death?

What Are Digital Asset Protection Trusts?

What Are Digital Asset Protection Trusts?

Digital Asset Protection Trusts (DAP Trusts) are trusts which allow the trust creator to place existing digital rights and property into a trust for the trust beneficiaries to use.

Digital asset protection trusts are a new type of trust pioneered by lawyers in an effort to protect digital rights which are not currently protected by any laws. Although wills were initially used to give decedents control over their digital estate, that approach quickly ran into problems.

What Is a Digital Estate?

A digital estate consists of the decedent’s digital rights and property, including e-mail, text messages, online storage, websites, financial accounts, music/publishing rights, and social networking accounts. One of the biggest legal questions in the 21st century is how to manage digital rights and property after the user has passed away.

Why Shouldn’t I Use a Will To Control My Digital Estate?

The most significant issue with using wills to manage digital estates is that the decedent doesn’t always have exclusive ownership over the property. For example, a Facebook profile is created by the user, but Facebook maintains control over the profile. Estate law prohibits decedents from giving away property they do not own.

Although it is a possible to give login information and passwords to another person through a will, online companies frequently prohibit password sharing in their user agreements. Breach of user agreements can result in legal problems for the estate.

Why Would a DAP Trust Protect Digital Rights?

Many tech companies view their websites or social networking accounts as licensing property. Most licenses expire when the licensee dies. DAP trusts can protect digital estates because the trust creator can put the licenses themselves into the trust.

Like all trusts, trustees can manage the digital licenses on behalf of the trust beneficiaries. Trust beneficiaries cannot directly control the licenses, but they can still reap the financial benefits.

Are DAP Trusts Online?

Generally, yes. Attorneys working with DAP trusts keep track of the digital estate through websites that clients can access. These websites and the documents they protect are given as much computer protection as possible.

Can I Update My DAP Trust?

Yes. DAP trusts can be revocable trusts, so they can be modified by the trust creator while the trust creator is still alive. This allows the trust creator to change passwords, update addresses, or anything else the trust creator would like to do with the digital property even though the digital property is in the trust. Best of all, the trust creator can do this from his or her laptop at home.

Are DAP Trusts Recognized By Courts?

Digital Estate Planning is new, so there is very little case law in this field. As a result, cases involving DAP trusts are non-existent so far. However, the fact that tech companies haven’t challenged the legality of these trusts yet means that DAP trusts have a promising future.

Do I Need an Attorney To Create a DAP Trust?

Given that DAP trusts are a new kind of trust created to address a new field of law, it would be foolish to create a DAP trust without an attorney. Although trusts have been in existence for decades, the use of trusts to protect digital estates is a new process that requires significant legal experience.