Estate planning So much of our lives take place online, but we don’t often think about what happens to our digital assets when we’re no longer here to manage them. It’s important to plan for our digital footprint after we’re gone to prevent any financial or sentimental losses. And […]
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.
CONCEPTS FOR DESIGN CONSIDERATION
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.
BALANCE AND CONSTRAINT
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
A few years ago, ahead of a scheduled operation, I had to hire an attorney to draw up my last will and testament. Per the hospital’s instructions, I was also told to bring a copy of my Advance Directive, or instructions on when to pull the plug. It was scary, grown-up stuff.
As a digital native, it all felt a bit too real. I would have much preferred to sit on my couch, laptop at the ready, with an on-screen AI to talk me through the whole decision-making process and pop it up on the cloud. And that’s exactly what former healthcare executive Suelin Chen built in her Boston-based startup, Cake.
Aware that no one is thrilled about planning for the final exit—or having to talk loved ones through their own wishes—Cake is a no-nonsense online tool. You can lay out: how you’d like to go (hospice versus at home or maybe a remote cabin in the woods); who gets your stuff; the music you’d like at your memorial; and more.
You can also specify how you want to be remembered digitally. Perhaps you want to allocate funds for annual site management fees, domain registration, or deputizing someone to ensure a Wiki-profile is factually accurate.
I spoke to Chen to find out more. Here are edited and condensed excerpts from our conversation.
Suelin, how did you come up for the idea behind Cake?
With my background in healthcare and business, I saw not only the high costs involved in end-of-life care, but that in our country people often default to enduring more and more medical procedures without fully understanding the value, or the trade-offs. Three out of four people don’t plan for end-of-life, and I get why—the barriers to planning can be really high. Simply put, I saw an opportunity to help people plan better, to make their desires known, before it’s too late.
Because they’re too incapacitated to make their views known?
Right, it’s often brought up too late. Because, when surveyed, 80 percent of people would prefer to die at home—and yet, today, 80 percent of people die in medical facilities.
Suelin Chen, Cake founder
Planning for the final exit is a space ripe for disruption, then.
I knew there could be good digital tools for doing this but I couldn’t find any, so I found a great team and built Cake.
Is there also a generational shift? Due to social media, we get to ‘see’ people die, many of whom we might have lost touch with over the years. Death is going to happen to us all. But it feels more ‘visible’ now.
Absolutely. We have a lot of millennials on our platform, and we see that this generation is very pragmatic and perceives less stigma about death than older generations. Previous generations have been remembered through a gravestone or something similar. In time, those degrade. But our digital footprint, the traces of our lives, will persist online. I ask people, when your great-grandchildren search online for you in the future, what do you want them to find?
That’s a deeply unsettling and yet curiously interesting thought. You must have worked with many different partners to bring Cake to life.
Yes, we’ve spent hundreds of hours consulting with experts to develop all our online tools including: estate attorneys, funeral planners, physicians, social workers, and wealth managers.
How does Cake work? This is more than a basic will, right?
Yes, many of our users have done estate planning and have a will but realize that they still have gaps. We provide a personalized, comprehensive, and detailed checklist that helps people understand what planning they still need to do. It’s hard to know what legal fees are reasonable, because there’s a lack of transparency. Many of our users have seen an attorney but want more visibility into the process. It’s not just avoiding taxes on your assets after death (though of course this is very important). It’s also managing how you want to be remembered, your funeral or memorial service, your digital footprint, your digital assets (Bitcoin, etc.)—certainly doing more than putting all your passwords in an Excel doc and locking it (which has been recommended to several of our users).
How many data points is your AI gathering as it takes a Cake user through personal planning?
It’s fluid [and] really depends on the individual. Our Cake AI prompts you with questions, to capture data around many decisions that need to be made. But there’s also a freeform section for more personal wishes. Some of our users write (almost) novel-length answers to those.
What are some of the more ‘out there’ requests?
Well, every employee at Cake has gone through the process and one of my team members loves the idea of having a tree planted for him. A lot of our users, including me, feel they’d rather have a celebration of life than a somber funeral. One of our users wants to be buried with a 6-pack of Bud Lite. Someone else I know has left instructions to rent out a movie theater for his. Your last wishes should be a true expression of who you are.
How many people have signed up so far?
We don’t reveal exact user numbers.
Fair enough. It’s free to users, so what’s your revenue model?
We make money from affiliate links and from enterprise partners who distribute to their population. For example, we’ve built a Cake back-end for a large healthcare provider, an insurer, a bank, and other institutions. A premium product is also in the works.
You don’t share data with ‘interested parties’ who might want to sell fancy urns then?
No, trust is the most important thing to us. We will never sell or share personally identifiable information with any third party without our users consent.
Why the name Cake?
It’s a warm, inviting symbol of celebrating and honoring life. Planning is a positive act, a true gift to your loved ones.
You’ve build a web-based service, rather than a mobile app. Why?
It’s much faster to iterate and improve the platform, and doesn’t require any download. We also know that many of our user base is more comfortable with web apps than downloading native applications.
Do you have a tech team in-house or are you partnering with a digital agency on this build?
All in house! We actually have more female than male techies, who span several generations, which I’m very proud of.
Are you wedded to any particular tech tools?
Choosing Microsoft Azure as our hosting platform made it easy for us to implement excellent security and scalability for our product early on, and our code base heavily utilizes the Microsoft .NET stack as well. We recently also switched our internal IT to Office 365 and were early adopters of Microsoft Teams; so I guess we’re fans of Microsoft technologies.
Why are you based in Boston rather than any of the other Silicon cities?
I love Boston. There’s a lot of activity in FinTech, MedTech, and healthcare here. It’s a great place to be, with plenty of talent and financial support from big institutions.
Finally, what’s next for you?
We have an exciting growth plan for 2019, and a number of new partners in the financial sector that will provide new avenues for growth and new opportunities to add features that enable our users to plan and have peace of mind. Cake is in the FinTech cohort of Mass Challenge 2019, which kicks off orientation on Jan. 18. The initiative is aimed at startups which have an enterprise-ready solution, and helps them partner with large organizations. Cake will be working with MassMutual, Fidelity, and AARP Innovation Labs.
How big is your digital footprint? For readers not familiar with this term, it means all the traces you leave behind, deliberately or not, when you use the Internet. As more and more of our lives move online, our footprints keep expanding – and they will certainly outlive us. Here’s what you should know about your digital legacy.
What’s in a digital legacy?
“A digital legacy is the digital information that is available about someone following their death,” says The Digital Legacy Association, an organization in England that raises awareness about the importance of digital assets and digital legacy planning.
The most obvious examples of digital traces include things you post publicly, such as social media content, blog posts, product reviews and comments on news articles. Your footprint also includes things you post or send privately, such as emails, direct messages on social media platforms, and files that you store in the cloud. Less obviously, your footprint encompasses the trail of your online activities: app use, email records, video chats and more.
Much of this info you probably don’t care about or want to keep. Some of it, you don’t have any control over (such as data collected by third-party trackers when you use apps, or the data that retailers collect about your web browsing habits when you shop online). But chances are you’ve got at least a few digital assets you’d like to preserve or pass on to your loved ones. Photos and home movies, for instance. In decades past, families passed down their photo albums and videocassettes. These days, many of us keep our precious memories in the cloud – perhaps only in the cloud.
Start your digital decision-making
It’s never too early to start planning your digital legacy: what you want to leave behind, as well as what you don’t.
This might seem like a chore, especially if you haven’t even thought about planning your non -digital legacy. But experts say it’s worth making the effort, if only to spare your loved ones the potential headaches, expense and even legal hassle of trying to access your digital assets after your death. Being pro-active about your digital footprint can also help guard against malicious online behaviour, such as people hacking into your account after your death and posting unwanted messages.
Here’s how to get started:
Much like making a home inventory, you can prepare an inventory of your digital assets, such as social media accounts, loyalty programs (points, frequent flyer miles), gaming accounts, banking and investment accounts, photos, videos, music, websites, blog posts, intellectual property, ebooks, audiobooks, etc.
Include assets that you have online (on websites, email services, social media platforms, cloud services, etc.) and on devices (smartphones, tablets, computers, external hard drives, other storage media, etc.).
When planning your estate, give the executor of your will control over your digital accounts, assets and devices (including passwords).
Create a social media will to communicate your wishes. Include detailed instructions for your accounts. Facebook, Twitter, etc., all have different rules for what happens to accounts after someone dies. For example, Facebook and Instagram offer the option to “memorialize” an account, but Twitter and Snapchat do not. See “Additional resources,” below, to find guides for each platform.
Going forward, be mindful about what you post online – it could very well live on forever and be accessible to all of your descendants.
Additional resources
Free guides to managing your digital legacy on social media platforms, digital devices and more.
Free online tutorials about digital footprints from the Internet Society.
Digital Legacy Plan: A Guide to the Personal and Practical Elements of Your Digital Life Before You Die , by Angela Crocker and Vicki McLeod (Self-Counsel Press)
Published in 2019, this book offers “solutions for the practical, social, emotional, and technical aspects of your digital legacy.”
Bayshore Home Health offers a wide range of home care services to help Canadians live independently for as long as possible. Contact us at 1-877-289-3997 for details.
Esther Earl never meant to tweet after she died. On 25 August 2010, the 16-year-old internet vlogger died after a four-year battle with thyroid cancer. In her early teens, Esther had gained a loyal following online, where she posted about her love of Harry Potter, and her illness. Then, on 18 February 2011 – six months after her death – Esther posted a message on her Twitter account, @crazycrayon.
“It’s currently Friday, January 14 of the year 2010. just wanted to say: I seriously hope that I’m alive when this posts,” she wrote, adding an emoji of a smiling face in sunglasses. Her mother, Lori Earl from Massachusetts, tells me Esther’s online friends were “freaked out” by the tweet.
“I’d say they found her tweet jarring because it was unexpected,” she says. Earl doesn’t know which service her daughter used to schedule the tweet a year in advance, but believes it was intended for herself, not for loved ones after her death. “She hoped she would receive her own messages … [it showed] her hopes and longings to still be living, to hold on to life.”
Although Esther did not intend her tweet to be a posthumous message for her family, a host of services now encourage people to plan their online afterlives. Want to post on social media and communicate with your friends after death? There are lots of apps for that! Replika and Eternime are artificially intelligent chatbots that can imitate your speech for loved ones after you die; GoneNotGone enables you to send emails from the grave; and DeadSocial’s “goodbye tool” allows you to “tell your friends and family that you have died”. In season two, episode one of Black Mirror, a young woman recreates her dead boyfriend as an artificial intelligence – what was once the subject of a dystopian 44-minute fantasy is nearing reality.
Esther Earl at home in 2010 … before she died, she arranged for emails to be sent to her imagined future self. Photograph: Boston Globe via Getty Images
But although Charlie Brooker portrayed the digital afterlife as something twisted, in reality online legacies can be comforting for the bereaved. Esther Earl used a service called FutureMe to send emails to herself, stating that her parents should read them if she died. Three months after Esther’s death, her mother received one of these emails. “They were seismically powerful,” she says. “That letter made us weep, but also brought us great comfort – I think because of its intentionality, the fact that she was thinking about her future, the clarity with which she accepted who she was and who she hoped to become.”
Because of the power of Esther’s messages, Earl knows that if she were dying, she would also schedule emails for her husband and children. “I think I would be very clear about how many messages I had written and when to expect them,” she adds, noting they could cause anxiety for relatives and friends otherwise.
Yet while the terminally ill ponder their digital legacies, the majority of us do not. In November 2018, a YouGov survey found that only 7% of people want their social media accounts to remain online after they die, yet it is estimated that by 2100, there could be 4.9bn dead users on Facebook alone. Planning your digital death is not really about scheduling status updates for loved ones or building an AI avatar. In practice, it is a series of unglamorous decisions about deleting your Facebook, Twitter and Netflix accounts; protecting your email against hackers; bestowing your music library to your friends; allowing your family to download photos from your cloud; and ensuring that your online secrets remain hidden in their digital alcoves.
In Be Right Back, a young woman recreates her dead boyfriend as an artificial intelligence. Photograph: Channel 4
“We should think really carefully about anything we’re entrusting or storing on any digital platform,” says Dr Elaine Kasket, a psychologist and author of All the Ghosts in the Machine: Illusions of Immortality in the Digital Age. “If our digital stuff were like our material stuff, we would all look like extreme hoarders.” Kasket says it is naive to assume that our online lives die with us. In practice, your hoard of digital data can cause endless complications for loved ones, particularly when they don’t have access to your passwords.
“I cursed my father every step of the way,” says Richard, a 34-year-old engineer from Ontario who was made executor of his father’s estate four years ago. Although Richard’s father left him a list of passwords, not one remained valid by the time of his death. Richard couldn’t access his father’s online government accounts, his email (to inform his contacts about the funeral), or even log on to his computer. For privacy reasons, Microsoft refused to help Richard access his father’s computer. “Because of that experience I will never call Microsoft again,” he says.
Our devices capture so much stuff, we don’t think about the consequences for when we’re not here
Compare this with the experience of Jan-Ole Lincke, a 24-year-old pharmaceutical worker from Hamburg whose father left up-to-date passwords behind on a sheet of paper when he died two years ago. “Getting access was thankfully very easy,” says Lincke, who was able to download pictures from his father’s Google profile, shut down his email to prevent hacking, and delete credit card details from his Amazon account. “It definitely made me think about my own [digital legacy],” says Lincke, who has now written his passwords down.
Yet despite growing awareness about the data we leave behind, very few of us are doing anything about it. In 2013, a Brighton-based company called Cirrus Legacy made headlines after it began allowing people to securely leave behind passwords for a nominated loved one. Yet the Cirrus website is now defunct, and the Guardian was unable to reach its founder for comment. Clarkson Wright & Jakes Solicitors, a Kent-based law firm that offered the Cirrus service to its clients, says the option was never popular.
“We’ve been aware for quite a period now that the big issue for the next generation is digital footprints,” says Jeremy Wilson, head of the wills and estates team at CWJ. “Cirrus made sense and ticked a lot of boxes but, to be honest, not one client has taken us up on it.”
Wilson also notes that people don’t know about the laws surrounding digital assets such as the music, movies and games they have downloaded. While many of us assume we own our iTunes library or collection of PlayStation games, in fact, most digital downloads are only licensed to us, and this licence ends when we die.
What we want to do and what the law allows us to do with our digital legacy can therefore be very different things. Yet at present it is not the law that dominates our decisions about digital death. “Regulation is always really slow to keep up with technology,” says Kasket. “That means that platforms and corporations like Facebook end up writing the rules.”
Andrew Scott stars in the new Black Mirror episode Smithereens, which explores our digital dependency. Photograph: Netflix / Black Mirror
In 2012, a 15-year-old German girl died after being hit by a subway train in Berlin. Although the girl had given her parents her online passwords, they were unable to access her Facebook account because it had been “memorialised” by the social network. Since October 2009, Facebook has allowed profiles to be transformed into “memorial pages” that exist in perpetuity. No one can then log into the account or update it, and it remains frozen as a place for loved ones to share their grief.
The girl’s parents sued Facebook for access to her account – they hoped to use it to determine whether her death was suicide. They originally lost the case, although a German court later granted the parents permission to get into her account, six years after her death.
“I find it concerning that any big tech company that hasn’t really shown itself to be the most honest, transparent or ethical organisation is writing the rulebook for how we should grieve, and making moral judgments about who should or shouldn’t have access to sensitive personal data,” says Kasket. The author is concerned with how Facebook uses the data of the dead for profit, arguing that living users keep their Facebook accounts because they don’t want to be “locked out of the cemetery” and lose access to relatives’ memorialised pages. As a psychologist, she is also concerned that Facebook is dictating our grief.
“Facebook created memorial profiles to prevent what they called ‘pain points’, like getting birthday reminders for a deceased person,” she says. “But one of the mothers I spoke to for my book was upset when her daughter’s profile was memorialised and she stopped getting these reminders. She was like, ‘This is my daughter, I gave birth to her, it’s still her birthday’.”
While Facebook users now have the option to appoint a “legacy contact” who can manage or delete their profile after death, Kasket is concerned that there are very few personalisation options when it comes to things like birthday reminders, or whether strangers can post on your wall. “The individuality and the idiosyncrasy of grief will flummox Facebook every time in its attempts to find a one-size-fits-all solution,” she says.
Pain points … should we allow loved ones to curate our legacy, or create ‘memorial pages’? Photograph: Yui Mok/PA
Matthew Helm, a 27-year-old technical analyst from Minnesota, says his mother’s Facebook profile compounded his grief after she died four years ago. “The first year was the most difficult,” says Helm, who felt some relatives posted about their grief on his mother’s wall in order to get attention. “In the beginning I definitely wished I could just wipe it all.” Helm hoped to delete the profile but was unable to access his mother’s account. He did not ask the tech giant to delete the profile because he didn’t want to give it his mother’s death certificate.
Conversely, Stephanie Nimmo, a 50-year-old writer from Wimbledon, embraced the chance to become her husband’s legacy contact after he died of bowel cancer in December 2015. “My husband and I shared a lot of information on Facebook. It almost became a bit of an online diary,” she says. “I didn’t want to lose that.” She is pleased people continue to post on her husband’s wall, and enjoys tagging him in posts about their children’s achievements. “I’m not being maudlin or creating a shrine, just acknowledging that their dad lived and he played a role in their lives,” she explains.
Nimmo is now passionate about encouraging people to plan their digital legacies. Her husband also left her passwords for his Reddit, Twitter, Google and online banking accounts. He also deleted Facebook messages he didn’t want his wife to see. “Even in a marriage there are certain things you wouldn’t want your other half to see because it’s private,” says Nimmo. “It worries me a little that if something happened to me, there are things I wouldn’t want my kids to see.”
When it comes to the choice between allowing relatives access to your accounts or letting a social media corporation use your data indefinitely after your death, privacy is a fundamental issue. Although the former makes us sweat, the latter is arguably more dystopian. Dr Edina Harbinja is a law lecturer at Aston University, who argues that we should all legally be entitled to postmortem privacy.
If we don’t start making decisions about our digital deaths, then someone else will be making them for us
“The deceased should have the right to control what happens to their personal data and online identities when they die,” she says, explaining that the Data Protection Act 2018 defines “personal data” as relating only to living people. Harbinja says this is problematic because rules such as the EU’s General Data Protection Regulation don’t apply to the dead, and because there are no provisions that allow us to pass on our online data in wills. “There can be many issues because we don’t know what would happen if someone is a legacy contact on Facebook, but the next of kin want access.” For example, if you decide you want your friend to delete your Facebook pictures after you die, your husband could legally challenge this. “There could be potential court cases.”
Kasket says people “don’t realise how much preparation they need to do in order to make plans that are actually able to be carried out”. It is clear that if we don’t start making decisions about our digital deaths, then someone else will be making them for us. “What one person craves is what another person is horrified about,” says Kasket.
How close are we to a Black Mirror-style digital afterlife?
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Esther Earl continued to tweet for another year after her death. Automated posts from the music website Last.fm updated her followers about the music she enjoyed. There is no way to predict the problems we will leave online when we die; Lori Earl would never have thought of revoking Last.fm’s permissions to post on her daughter’s page before she died. “We would have turned off the posts if we had been able to,” she says.
Kasket says “the fundamental message” is to think about how much you store digitally. “Our devices, without us even having to try, capture so much stuff,” she says. “We don’t think about the consequences for when we’re not here any more.”
