Estate Planning for digital assets

Estate Planning for digital assets

The world is changing … fast.

At the time of writing this I am 37. I got my first mobile phone when I was 17, 20 years ago! My first computer was a Sinclair Spectrum and I played games on it. In fact, computers were for playing games on as far as I was concerned until at least 1997. I had IT (Information Technology) lessons in school but didn’t pay much attention. It was mostly graphs, flowcharts and spreadsheets, boring.

The point I am making is that up until the age of 16 or so I never considered using a computer for anything other than games. These days, obviously you can still do that BUT … you can also do so much more! My job wouldn’t exist without one, or much of my leisure time. Films, TV Series, Books and yes … still games are all things that I experience online. They are purchased to “own” and are all stored in formats that can’t be held.

There lies what is about to be a massive issue when it comes to Estate Planning and it is a problem that few have thought about.

Digital Assets: A new addition to the Last Will and Testament

When you mention estate planning to someone and ask them to define it, apart from a small groan they may audibly mention Wills, money, houses and inheritance tax. Stocks, bonds and guardians may get a mention too. Although important … nothing new or out of the ordinary. The concern is when it comes to the items we have spent money on that you can’t hold. You can’t pass it over in person and you certainly can’t leave it to someone by mentioning the item and location.

We spend money on things these days that are in the cloud, on a hard drive or within an account with security measures. We have services taking money from our bank accounts monthly or yearly, that in the event of our death, would be really difficult to close without being able to log into the account. It may not sound like too much of a problem and not worth worrying about.

You should however as it is yet another, albeit newer part of the probate process that can and will give your loved ones a stressful time once you are gone.

Games, Films, apps, subscriptions and more have all been paid for and belong to you. The thing is … how are they easily cancelled and are you able to transfer any of them onto your loved ones when you die?

Online Purchases of the young and old

Today’s older generation are becoming more and more tech savvy and as such are embracing computers, tablets, smart phones and more.

In doing so they may have set up accounts with the likes of Google, iTunes, Facebook, Twitter and Spotify to name but a few. Young or old, you may have purchased games from the Xbox Marketplace or films from Apple TV service or Sky. Do these disappear from your accounts on death or are they an asset that you own and can pass to someone else? It is definitely something that you should look into.

Another big question is, what happens to social media accounts when we die?

Do bear in mind though .. it is not just the older generation that need to take heed. We do not know the date of our death and just because someone is 60 doesn’t mean they will die before someone who is 40.

For this reason I am taking the time to explain the importance of embracing your digital footprint and purchases and to make the process of closing things down easier for your loved ones. Also, where you are able, to allow the digital items to be passed onwards after you are gone.

Aside from online purchases and services we also need to take responsibility for our social media accounts. Mainly to ensure that they don’t upset our family members in future.

Closing Accounts

Many services take a monthly fee from you in order to continue your access. Setting them up is as easy as putting in your email address and Paypal information. Closing can be just as easy, click the cancel button under profile.

What if the person doing it isn’t you and doesn’t have your profile information though?

In this circumstance the ease of online accounts goes out of the window. Some services will require proof of death and others will suggest it is easy when it may be far from the case. Take Netflix as an example, it works as I have described. Want to cancel? Head to the account section from a computer and click on “Cancel Membership”.

Closing these accounts after your death when others are unable to log in though is not so easy. One would think that Netflix hasn’t really thought about it as a search in their help centre shows up empty. A google search though found an article from a lady in dire need of help. She tried to cancel the account, got told it was cancelled, and then they kept taking payments!

Messages from beyond the grave

The same issues arise with social media accounts. Which ones do you have?

Would you want them closed after you die? What harm could come from it?

Let’s use Facebook as an example. Just for now let’s say we are friends and that you have shuffled off this mortal coil. You are gone, I return from your funeral, open my phone and see a post from you. I drop phone, screen cracks … it’s all your fault.

I realise I am making light of the situation and that is intentional. It would seriously freak me out!

Facebook business pages allow for you to schedule posts days or months into the future. If you use a third party solution such as Hootsuite … you can do the same thing with your personal posts. You could be long gone and yet seemingly from beyond the grave you are trying to talk to your facebook followers.

It has happened and it will continue to happen unless we take the appropriate steps to ensure that social media account login credentials are available to executors.

In the case of Facebook, I could have informed them that you had died. It would have taken immediate family to report your passing before Facebook would do anything about it though. There are two options, memorialising your account or asking for account cancellation. Facebook states that they would never openly give the login details to anyone whether you are alive or dead and it is their policy to memorialise the account. This allows for the account to stay open and for people to be able to use it to gather and share memories.

Is that what you would have wanted though? Account removal may be considered a preferred option. After you have gone, this all takes time and potential upset for friends and family that they most likely could do without.

Even if you haven’t scheduled posts you would still appear in searches and available for tagging in photos. Personally, I would find that creepy and would want to protect the people I care about from the upset.

Providing your social media log in details on death would ensure that your accounts could be closed quickly if that were your choice as per your last wishes. If you made no such specification, at least it would be easier for your loved ones to make the decision.

The problem is only multiplied when we look at the fact that we may have Twitter, Google+, Instagram, Snapchat, YouTube, LinkedIn, Pinterest, Tumblr, Flickr, Vine, Digg …. I could go on.

Your rights of purchase after you die

Entertainment services like Sky, Apple TV and other satellite TV services allow for you to buy films and series to download to your hard drive. Do you own these films indefinitely though?

Searching online turns up few results for the main reason that I believe the average person hasn’t really thought about it yet. In fact the companies are making it difficult to find this information out too. Looking into the help and support portals provided by the likes of Netflix and Sky, show me that they don’t believe it is a big deal as yet. It has certainly got me thinking about what I spend my money on.

How much money might we have pumped into our film or music collection over a lifetime though?

If it were DVDs or CDs I would leave them to my partner, sister or friend. When it’s all online though and associated with an account that I have sole ownership of … what happens then?

In order to find this out, it would mean direct contact or potentially looking into the terms and conditions of service or purchase.

I emailed Sky and asked … what happens in the event of my death?

The response I received back was short and to the point …

“I wish to inform you that your account will be changed to deceased status and you will not be able to gift it to your friends or your family.”

Although pretty vague and not really specific to the films and series that were bought to keep, maybe I am to actually take it at face value. If I die, my purchases cease to be.

I emailed back and mentioned that this is concerning news. That we are all spending money on items that are only good for the period of our lifetime whereas previously they were for the length of the CD/DVDs lifetime.

The response I received then was from a manager who stated:

“With any Buy & Keep purchases these will be available no matter what, if for instance your Sky TV account was to close, you will still be able to view all your Buy & Keep purchase via www.skystore.com .
These can also be accessed by friends and family as long as they know your username/email and password in order to access www.skystore.com , if they do know these details then by all means they will be able to view the purchases you have made.”

This would suggest that your account is never closed and that they allow other people to access a deceased persons account. It doesn’t seem ideal and could potentially be upsetting.

iTunes, Amazon, your satellite or cable service all offer the opportunity to buy music, film and TV online as a digital entity. In order to properly understand your rights of purchase for digital items you would need to delve into their Terms and Conditions or flat out ask and potentially get the kind of response I have received.

Although I looked into a couple of examples for you, that isn’t really the purpose of this blog. Now that we have some scale and idea of consequence the big question is … how do we make sure that we look after our family, pass down what we are able to and generally allow for a smoother transition. We would be gone, who cares right? I think I would.

Make a list of digital assets

Simple, although potentially time consuming.

I don’t just mean online accounts here but also any and all technological assets that you have. Hard drives, computers, phones, tablets … even that old Psion Organiser you have (could be worth a bit of money these days!).

Unless you have an obscure collection, the hardware side of things may not take that long, It’s the online accounts and their access details. Accounts including Social Media, Shopping, email, photo and video sharing, cloud storage, banking, gambling, websites and blogs should all be listed.

Now you have a choice in my opinion. I have seen a fair few articles suggesting that you write down usernames and passwords for all accounts. As I type this I am well aware that the advice may well go against the terms and conditions of the services in question. As always it is totally your decision to take heed but there is no doubt that doing as suggested would make things a lot easier for your family.

* Keep a complete list of all accounts including passwords to allow access after you are gone. This may not be the best course of action as passwords change all the time with most services suggesting you do it multiple times a year. Keeping a file updated so often would become annoying.

* Give one person access to everything during your lifetime, although this isn’t ideal and may feel like an invasion of privacy.

* There are online resources that offer multiple options to pass your differing accounts to differing people. Entrustet or Legacy Locker, allow you to designate access to differing people. You may not want all of your emails read by your mother but you may trust a friend to delete the emails and account without reading it. You may have a Picasa account that you would like your family to have access to and a dropbox account that needs to be made available to your work colleagues. All of this can be organised though the multiple online services available. A potential problem here would be the companies in question not surviving. You may have paid them to allow for the service only to have them go bust making the process void.

* My suggestion and perhaps a better option all round, would be to make sure that all accounts are set up to the same email account. You would still write the list but without the passwords. Then just provide the username and password for that email address either in your Will or beforehand. Having an email address just for services could be prudent as then your personal emails wouldn’t be accessible to someone else. When you die, your Executor can go and reset your passwords for the accounts from that email address. If you change your password to this account you only have to update one. You may also want to add the executors email address as a recovery address so if they are locked out … they can still get in.

The only extra accounts that this may not work with would be banking accounts but as the information isn’t going to be released until they have seen your Will anyway, you may deem the log in information for these to be safe written in or attached to your Will.

Who gets what? Assigning digital assets

Depending on what you have through hardware to software and online accounts, you may wish for different people to have access as mentioned above.

You may want some things saved, passed along or deleted. While your wishes may conflict with the service providers terms and conditions, your Executor will find it useful information to know what you would have wanted.

Some digital assets may have monetary value or have funds associated with them like PayPal or Bitcoin. If you are anything like me, you could have accounts with stock image galleries or web asset portals that have outstanding credits available. Rather than let them expire or go unused you may want to give someone else the opportunity to use them.

One of your revenue streams could be an online store. Does that stop and shut up shop because you are gone or would you want to pass the helm to a trusted friend or co-worker?

Name a Digital Executor

The person who deals with your physical estate may not be the person you want to deal with your digital assets. A good example of this would be that I personally trust my father to deal with the physical estate but asking him to do anything with a computer would be asking more than his abilities allow.

A wish to have differing Executors for your physical and digital affairs is currently unlikely to be legal as the law states that an Executor has the duty/ability to wrap up all of your estate. A digital Executor is not an enforceable request and as such not legally binding but you may decide to name two people as Executor. They would be jointly responsible but of the understanding that they deal with their assigned and requested duties.

Store the information somewhere accessible but secure

This would be similar advice to what we would suggest for your Will and it would make sense to keep them both in the same place.

* Tell one or two trusted individuals of your plans. These could be your agreed executors or additional to them.

* Store somewhere accessible to one or two other people. This could be a safe, offsite secure storage, a bank vault or in the case of your digital affairs … an online service.

* Provide all information to get the ball rolling. A pin number, lock code or password that opens up the rest of the information (whether this be access to your email account or other service) needs to be stated in your Will or passed to your Digital Executor before you pass away.

Add it to your Will

It will be added as a request rather than a legal instruction but including the information as part of your Last Will and Testament is definitely a good idea. Just by stating who your Digital Executor is and the location of your list/wishes, you would be aiding them to wrap up your affairs in an orderly fashion.

When someone dies their Will becomes a public document. Through www.gov.uk you are able to search for the probate records of anyone you wish. For this reason, I would suggest you don’t include the log in details as part of your Will but as more of an accompaniment. Giving away your log in details may be overly private … particularly as passwords could be rather revealing depending on what they are!

Refer to the information as an outside document that is necessary to complete your wishes. This way you can continue to add to it or edit it up until the time that it is needed.

Estate Planning for the Future

Ask anyone who works with technology and they will happily explain that computers are still relatively new and that iPhone X smartphone will be as obsolete as the iPhone 8 was in almost as quick a time (nerdy joke there).

As the world moves forward, there will be assets that we would have never previously thought of that need to be given thought and inclusion into your Estate Planning requirements.

Folium Consulting LLP keep our operating practices up to date and relevant to ensure that you are receiving a product that will be relevant and most importantly legal long into the future.

Should you want to talk to us about your situation and Estate Planning concerns, we offer FREE consultations in a place of your choosing. We will endeavour to work to your availability and you can have anyone you wish join us for the consultation.

Contact us via phone on 0800 240 1714 or via the form, chat facility or Facebook messenger. We will be on hand to organise and help you with any questions you may have.

Andy looks after the graphical/digital services and content for Folium Consulting. With previous experience offering not only creative solutions and content writing but also estate planning and Will provision Andy is able to provide informed and engaging articles for you to read. All articles are also vetted by Folium Consulting management to ensure that the information you are receiving is current, up to date and useful.

Do you need a social media will?

Do you need a social media will?

Social media users are being urged to appoint a digital executor to make sure their wishes for their accounts are respected after death.

Many people do their banking, insurance and other financial business online, as well as engage on social media platforms, without giving much thought to legal protocols.

Social media
Social media

Director of Operations at the Australian Communications Consumer Action Network Narelle Clark told Nine to Noon people are increasingly storing their personal and financial information online.

They often don’t read the fine print and have no idea what will happen to their digital footprint if they die.

Ms Clark is hosting a forum set up by Internet New Zealand in Wellington on Thursday, which will feature experts discussing the types of steps people can take to protect their digital legacy.

“What you should do is sit down and, alongside your normal will, think up all of the things you want to do with your digital footprint,” she said.

“All of this stuff that you’re accumulating online, particularly if it’s got monetary value – I can’t stress that enough, if it’s got monetary value – make sure that your designated heirs can get access to all this after you move on.”

Some people want their Facebook accounts to remain open after they die so people can visit their page and remember them. Photo: 123RF

Facebook now allows members to set up a legacy contact, allowing its user to nominate someone who will decide whether their page is shut down, or kept online as a memorial page to the deceased.

“You can also download the entire contents offline so that your family can remember your photos and so forth offline, if they want to sort through them offline rather than online, but people often find having some online presence – especially if that’s how they interacted with you – can be comforting.

“People wanted to leave it there because they can go to that person’s Facebook page and remember them and be comforted by the memories and times they had fun together, when they visited the Louvre together or Eiffel Tower or whatever they did.”

Google, meanwhile, might not hand over access to family members without a court order, to protect the privacy of people who had been in correspondence with the email account holder. However, you can also set up an inactive account manager, who might be notified if your account hasn’t been used in some time.

Twitter reserves the right to keep high-profile accounts active after the death of the original owner, with the possibility that the account might use artificial intelligence to continue tweeting.

“If Twitter decides, arguably, your account is making them a lot of money because they like advertising they could well decide not to shut it down.

“And there is now such a thing as an avatar, that can live on and tweet in your name using artificial intelligence to look at all the tweets you used to tweet.”

New Zealand Law Society has a checklist online, about what questions you should ask yourself about what you want to happen with your digital legacy after you die, and information about what different social media providers require to store, disclose or remove your content.

Planning Process

Planning Process

Although there is no national legal consensus to guide digital estate planning, you can still develop an effective plan in consultation with your attorney. At the very highest level, this process involves the following steps: Completing a digital asset inventory, identifying a digital executor and consulting with an attorney, providing access to your digital assets, providing instructions, and granting authority.

A plan implies an architect, by Sarah Ross photography, CC BY NC 2.0
A plan implies an architect/
Step 1: Complete a digital asset inventory to identify your digital assets

What to include: Examples of items to include are:

    • Hardware: For example, flash drives, US bard drives, digital cameras, backup CDs/DVDs, Computers, iPads, iPods, and other devices.
    • Networking: Router information, wireless network names and passwords
    • Software: For example, financial programs such as Quicken or online software subscription accounts, such as to Adobe Cloud
    • File structures: Information to indicate how and where files are organized on your computers and other storage devices
    • Social networking, social analytics, social curation, sharing, and online reputation management: For example, Facebook, Twitter, HootSuite, Buffer, Pinterest, Scoop.It, Paper.Li Klout, Kred
    • Professional networking: For example, LinkedIn, Plaxo, BizNik
    • Photo sharing and video: For example, Flickr, SmugMug, Shutterfly, Instagram, Vimeo, YouTube, Vine
    • Music streaming and sharing: For example, Spotify and Pandora
    • Media and online entertainment/apps stores: For example, Netflix, iTunes, Google Play, or Windows App store
    • Online presence/personal branding: For example, any websites and associated webmaster/analytics accounts, blogs, online commerce sites (if you run an online business). For example, WordPress, Blogger, Google Analytics, Google Webmaster Tools, About.Me
    • Online backup/file storage: For example, Skydrive, Dropbox, Wikispaces, Box.Net, and Google Drive.
    • Online merchants: For example, Amazon, ebay, iTunes, Nordstrom, Starbucks, or Netflix. Also, any digital subscriptions to local or national newspapers or online magazines.
    • Online gaming/virtual worlds: World of Warcraft, Second Life, XBox
    • Financial planning accounts: This includes banking, retirement, investment, credit card, loan, and insurance accounts that are accessed online.
    • Email accounts
    • Student and library accounts
    • Utility bill accounts that are paid online
    • Travel-related accounts: These could include frequent flyer mileage accounts, and travel planning accounts such as TripIt, as well as travel loyalty/rewards programs such as Hilton Honors.

If you plan to store this information online, companies such as Legacy Locker and SecureSafe provide services for this purpose. For a list of companies and the services that they provide, see The Digital Beyond website’s helpful listing and pages 10 and 11 in Estate Planning in the Digital Age by law professor Gerry Bayer.

Important: Be aware that although online services are helpful as repositories for digital asset information and instructions, it is critical to consult an attorney to ensure that you transfer assets in a legal manner. As Gerry Bayer and Naomi Cahn state:

Clients may have signed up with an on-line asset management company and so be hesitant to address these assets in the estate planning process. Clients may believe the companies’ claims that they will be able to distribute digital assets to beneficiaries or to destroy assets that the client wishes to discontinue on her death. Clients need to understand that the legality of these actions is doubtful. Although these companies can be used to store information, other estate planning methods should be used to transfer assets.

For more information, see When You Pass on, Don’t Leave the Passwords Behind.

Step 2: Identify your digital executor and consult with an attorney

Choosing your digital executor: Your digital executor will carry out your end-of-life wishes for your digital estate. You may want to choose the same executor for your digital and physical assets, choose a different executor for your digital assets, or choose multiple individuals to perform the different tasks required to administer your digital estate. Whichever approach you choose, keep in mind that accessing online accounts and carrying out specific actions such as deleting an account or archiving information, requires technical knowledge and skill. Choose someone who has sufficient experience, is technically proficient, and adept at solving problems should they arise. That person should also be impartial so that they can carry out wishes that may be difficult for less impartial individuals (such as deleting accounts that you want deleted that certain family members may not want to delete for sentimental reasons).

It is important that your digital executor comply with applicable state and federal statutes and Internet service providers’ terms of service agreements. For example, depending on the terms of service of the email provider, if your digital executor accesses your email account without the email provider’s knowledge, that action could violate the providers’ terms of service and constitute identity fraud. Preventing such issues is one reason why it is critical to choose a skilled attorney.

Choosing your attorney: If you already have an estate planning attorney who is also experienced with digital estate planning, this is ideal. If you need help finding an attorney, a reputable bar association-sponsored lawyer referral service may be one option. For information, see the American Bar Association Consumers’ Guide to Legal Help. A high-quality directory of rated lawyers such as Avvo is another option.

Step 3: Provide access to your digital assets

If you have not already done so as part of Step 1, for each digital asset, note the information required to access it. For example, note the name and type of digital asset, and where applicable, the site URL, the user name that you use to sign in/log in to the account, your password, and any answers to secret questions, if required for account logins. If you used an online service when you completed your initial digital asset inventory, you may have entered this information as part of that process.

Step 4: Provide instructions on how to administer your digital assets

Instructions may include:

  • Notifying Facebook friends, Twitter followers, LinkedIn connections, and blog readers that you have passed away or are incapacitated.
  • Deactivating/closing social media profiles, or memorializing them. For example, Facebook and Google both provide ways for appropriate designated individuals to take specific actions as follows:
    • Facebook: Facebook provides an option to memorialize a deceased person’s profile. If you choose this option, this allows for friends to share their memories on your timeline and view content that you choose to share after you pass away or have become incapacitated. It also ensure that your memorialized timeline doesn’t appear in People You May know and other suggestions.
    • Google: In April this year, Google released Inactive Account Manager, which lets you share specific parts of your account data or notify one or more trusted contacts if your account has been inactive for a minimum of three months. The contact will be notified via email and if you choose to share your data, they will be provided with links to download your data, after their identify is verified.
  • Bequeathing information that you may want to be made available to specific people.
  • Closing or continuing websites: Designating someone to maintain or close your blog and perhaps archive important information, if allowable under the Internet service provider’s terms of service.
  • Specifying information that should not be deleted, such as valuable creative works completed or in progress, personally important photos, videos, or other content.
  • Posting a final online message that can be shared with your friends, family, and colleagues (an example of a moving final message is here). For example, you may want a photo album posted or a video. A growing number of online services and applications, such as ifidie, Recollect, and Bcelebrated, provide different ways to create an online legacy.
Step 5: Grant your digital executor(s) authority to administer your digital estate

This step is crucial and where you will want to work closely with your attorney, to ensure that your digital executor is legally authorized to carry out your digital estate planning wishes and he or she does not run afoul of applicable statutes, laws, and terms of service agreements.