How to bequeath Emblem3 to loved ones

How to bequeath Emblem3 to loved ones

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I was about to speak with my friend and author Peggy Hoyt recently about how happy I was that I completed my estate plan. I figured that getting an estate planning expert and author of books on the subject to “bless” my intentions would provide a level of confidence that I had considered everything.

“Dad, what happens to your iTunes songs and Kindle books if you pass on?”

No one can make you stop and reconsider every action you’ve ever done in life like your children.

When I informed my lovely daughter, who seemed to ask the question with less remorse about my demise, and more concern about ensuring that she continues to have access to her Emblem3 songs and Divergent e-books, that I didn’t know, it seemed that the call to Peggy would have to wait.

Did I need to be concerned about this? Do I need to consider my digital assets into my estate plan?

A recent article on the ally blog points out that, “Estate planning of digital assets is a relatively new focus for concern for both consumers and their attorneys — and something that shouldn’t be overlooked. Your heirs may not be able to find or access all of your digital assets if you don’t include them in your estate plan.”

The article states that 87% of adults use the Internet and I can’t speak for others, but I know that I have spend lots of money on songs and books that exist only in the Internet, accessible only with my password and personal information. Shouldn’t these be considered assets and something that falls under the purview of estate planning?

In the article, James Lamm, an estate planning and tax attorney at Gray Plant Mooty law firm in Minneapolis, Minn. said, “Digital assets hold both financial and sentimental value to family and friends that should be addressed in the estate planning and administration process.”

Lamm recommends that estate planning include a thorough and rigorous review of identifying a person’s digital properties and identifying which of them are “valuable or significant.”

“Additional obstacles with digital property that you don’t have with traditional property are passwords, encryption, computer crime laws, and data privacy laws. Any one of them can make it practically impossible to do anything with the digital property unless you’ve planned ahead,” Lamm said.

Listing Web assets, passwords, and all online accounts is a tedious exercise, but if digital assets exist there, you need to consider them or they will disappear into the ether, when you, ahem, do the same.

A necessary resource to assist you is the process is an article in Estate Planning magazine from May 2013 , which provides a clear outline of what items need to be considered. These include consideration of your email information, social-networking site information, blogs you maintain, online financial sites, digital photos and more.

Another resource is Lamm’s website, DigitalPassing.com , where he provides great advice on the subject including explanations of the Terms of Services contracts from various online providers and how they may impact the ability for fiduciaries to access this information, even if they have the password information.

He reports that laws are changing as more people and authorities recognize that digital assets are part of a person’s estate. It’s an area that is worth watching. The ally article states that “Lamm stresses that until the laws are changed, taking the steps to safeguard your digital assets isn’t infallible. But it will make it easier to have your wishes followed if you put them in writing.”

Obviously I still have more work to do on my estate plan and with the consideration of digital assets, it’s clear that what we know about estate planning is changing. Well at least, my estate plan will look a lot different from what I originally thought and because of my book and song collections, clearly unique and different from others.

In her book, ” What’s the Deal with Estate Planning? ” (published by People Tested Publications, which I have ownership in), Peggy Hoyt makes clear that, “A primary goal of estate planning should be to create a plan that works-for you and your family. No two families are alike and no two plans will ever be alike.”

So before I consider my estate plan complete, I’ll have to consider those Emblem3 songs. Just don’t make me listen to them.

Why your digital photos might die before your grandkids see them

Why your digital photos might die before your grandkids see them

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My great-grandfather was Popeye. I discovered that from old photographs my father found in his childhood home.

They were stored with a newspaper article from 1938 describing how Jonathan Wagstaff was inspired to become a Popeye impersonator after winning the title of “Homeliest Man in California” at a male bathing beauty contest in Venice Beach.

Jonathan Wagstaff
Jonathan Wagstaff, the author’s great-grandfather, in Popeye and regular attire.

Keith Wagstaff

These days, it’s hard to imagine documents like that being stored in a box. The photos might be kept on a hard drive or posted on Facebook. Instead of a printed article, you might save a link to a story online.

The problem? Hard drives can be unreliable and Internet companies sometimes fail — taking your memories with them.

Hard drives, hard times

“The question of, ‘How long does data live on a hard drive?’ is a tricky one,” Ahmed Amer, an associate professor of computer engineering at Santa Clara University, told TODAY.

Digital family photos should be just fine for a few years. But when you start talking decades — like the 76 years my great-grandfather’s photos lasted — things get complicated. Your typical hard drive uses magnets to write information. With older hard drives, that can be a problem.

“Just like a credit card, you don’t want to put it next to a magnet, because what you have on the magstripe will be erased,” he said.

It’s not only magnets that you have to worry about. Heat, a spilled cup of coffee and other environmental factors can degrade the information on a hard drive.

Video: TODAY brings you a roundup of “what were they thinking” moments captured in some truly odd holiday images.

Newer hard drives are less susceptible to those factors, according to Ethan Miller, the Symantec presidential chair in storage and security at the University of California, Santa Cruz. In fact, the data on them should be fine for decades. The actual hard drive, however, will probably break before then.

“A hard drive is a physical device,” Miller told NBC News. “Things like the lubricant and bearings will degrade over time.”

Like a car, it’s a good idea to take stored hard drives out for a spin every so often. Stored unused in a closet or attic, the mechanical parts in a hard drive can break down over the course of a year or two. At most, hard drives are built to last around five to seven years, Miller said.

Another option is saving documents on a CD or Blu-ray Disc, preferably in a cool, dry area. (Anyone who has left a favorite CD on their dashboard knows why). But those break down over time as well.

Burning a CD or DVD involves heating up a layer of dye with a laser. As it does with photographs and clothing, dye on a DVD fades, causing those cherished photos to degrade.

“There are plenty of CDs and DVDs that were burned 10 to 15 years ago that are already bad,” Miller said.

The tech, it is a-changin’ 

“A lot of people, when they think of data storage, they think, ‘Will it survive?'” Amer said. “That’s really just a small part of it.”

Hard drives are vulnerable. So are CDs. But even if you carefully store your data on a disc that can withstand time, there is the chance that, in five years, nobody will be able to access that data.

“If I gave you a LaserDisc today and told you there was a lot of cool stuff on it, what would you do?” Miller said.

It was only 20 years ago that people could go to the store and buy a LaserDisc player. These days, you can pretty much only find them on eBay. Floppy discs, VHS tapes and eight-track cartridges are just a few example of other defunct technologies. Chances are that the computer cables you used 15 years ago don’t work with hard drives today.

Ultimately, Amer said, rapidly evolving technology could pose a bigger threat to your data than a failing hard drive.

Living on a cloud

For many, a good solution is the cloud. Facebook has a team of professionals ensuring that the servers storing your photos are kept in tip-top shape. Their business depends on it, after all. They are a lot safer there than on DVDs in a box in your closet.

There are a lot of other options for people who want to store their photos online, including Dropbox, Google Drive and Flickr. While disk drives and computer cables might change, it’s a good bet that the Internet will be around in 50 years.

That doesn’t mean your data is safe. Remember Friendster? Kodak Gallery? Yeah, you aren’t getting your photos back from them anytime soon. And transferring information from a dying website to a new one isn’t always easy. If you store your photos online, make sure to check those sites often.

Cloud services that charge for online storage are usually a good bet, Miller said, because they can just charge more if costs go up, instead of discontinuing a free product that is no longer profitable.

Doing things the old way

There are some radical solutions that the next generation might use to make sure their memories last hundreds of years. In New Mexico, Norsam Technologies etches data onto nickel plates on a microscopic scale — almost like creating incredibly tiny, dense music records. It’s called Rosetta-HD.

It might be cool, but there is no telling whether it will catch on. Right now, technology doesn’t have an easy solution for long-term storage. Digitally storing photos is no guarantee that your grandchildren or even your children will be able to look at them.

As for photos of my great-grandfather, my family keeps them on a hard drive, cloud service and in a good, old-fashioned box. Apparently, that is the smart thing to do.

“Going with a diversity of approaches is really the way to go,” Miller said. “It sounds really weird as a computer scientist saying this, but if they’re photos you really, really want your grandchildren to see, print them out.”

 

What Happens to Your Digital Estate After You Die?

What Happens to Your Digital Estate After You Die?

Ever wonder what happens to your social media accounts, email, online texts and other digital content when you die? Do they simply expire, leaving nothing behind but digital dust? Or can you authorize someone to take them over after you pass on? And if so, what powers would such a person possess?

In response to such quandaries, tech giants Facebook and Google have created systems to deal with death—such as suspending inactive accounts, and creating online memorials. But these steps only address part of the problem.

This novel issue was recently confronted by the Delaware Legislature, which became the first state to pass a uniform statutory scheme granting fiduciary trustees full access to a decedent’s online accounts and digital content, just as they would with more tangible assets. If this trend continues, more people may be able to confidently plan for the disbursement of their digital estate.

Avoiding Digital Death

Left unchecked, social media and online accounts may expire with the decedent. This phenomenon is commonly referred to as “digital death.”

Digital death can be emotionally devastating: The permanent loss of a loved one’s intimate thoughts and feelings can exacerbate the grieving process. Social media sites like Facebook and MySpace also routinely restrict account sharing in their terms of use.

But digital death can also have financial repercussions, as digital assets can have real value. A 2011 survey by McAfee found American consumers valued their digital assets at an average of $55,000. Such assets include digital photos, digital music, client lists, domain names, social media accounts, online manuscripts, blogs, email accounts, computer code, online gaming avatars and more.

Delaware Grants Fiduciaries Full Access to Digital Assets

In an effort to provide a workable framework by which to administer one’s digital estate, Delaware recently passed the Fiduciary Access to Digital Assets and Digital Accounts Act, 12 Del. C. Section 5001, et seq., in August.

What makes the act so unique is that it is the first adoption of the Uniform Fiduciary Access to Digital Assets Act (UFADAA), drafted by the Uniform Law Commission (ULC), a nonprofit group that lobbies to enact model legislation.

According to the ULC, the UFADAA solves the digital estate problem by using the concept of “media neutrality.” This means if a fiduciary would have access to a tangible asset, that fiduciary will also have access to a similar type of digital asset. The UFADAA also defers to an account holder’s privacy choices as expressed in a document (like a will or trust), or online by an affirmative act separate from a general terms-of-service agreement. Thus, an account holder’s desire to keep certain assets private will be honored by the UFADAA.

One reason the UFADAA is so important is because current federal legislation regarding access to digital assets is hidden in the Stored Communications Act (SCA) and the Computer Fraud and Abuse Act (CFAA)—both passed in 1986, with only minor revisions since then. Notably, the SCA broadly prohibits an “electronic communications service” (like an email service or social network) from disclosing the “contents of a communication” to parties other than the sender or recipient. The CFAA imposes criminal penalties (or civil liability) for “unauthorized access” to computer hardware, devices, and stored data.

To address this concern, the act states a “fiduciary with authority over digital assets or digital accounts of an account holder … shall have the same access as the account holder, and is deemed to (1) have the lawful consent of the account holder and (2) be an authorized user under all applicable state and federal law and regulations and any end user license agreement.”

Despite its well-intentioned goals, detractors like Jim Halpert, an attorney with DLA Piper and director of the State Privacy and Security Coalition, still oppose the act. “This law takes no account of minimizing intrusions into the privacy of third parties who communicated with the deceased,” Halpert told Ars Technica. This includes highly confidential communications to decedents from third parties—like doctors, psychiatrists and clergy—who would not expect an executor to review the communications. Halpert also claims it will cause confusion with federal law.

The act is set to take effect Jan. 1, 2015.

Other States’ Approaches to Divesting Digital Assets

Delaware was not the first state to address digital assets. In 2005, Connecticut passed a narrow law giving access to email accounts for deceased residents. Since then, Rhode Island, Idaho, Indiana, Oklahoma, Nevada and Virginia have all passed legislation providing varying degrees of access to digital accounts.

Bills are also pending in a dozen other states, yet all but one has failed to pass. In Pennsylvania, HB 2580—a fourth-generation bill to allow access unless it was restricted by will or court order—has been pending since August 2012.

Implications: Planning for Your Digital Estate

Digital assets have largely replaced tangible ones in our modern world. Yet the laws governing access to these assets remain outdated and inconsistent.

Although a form of personal property and part of a decedent’s estate, commentators have observed that rights regarding digital assets are intertwined in a complex web of federal, privacy, copyright, intellectual property and state law. The result is fiduciaries are often left with little authority or guidance in collecting, distributing and settling a digital estate. And the problem may be more widespread than previously understood. According to a March 2012 article in Technorati, 30 million Facebook accounts belong to dead people.

Current federal law and the law of most states fail even to recognize a fiduciary as possessing authority over digital assets. And until more jurisdictions adopt the UFADAA, this lack of uniformity will only continue.

When a person dies (or is incapacitated) his or her fiduciaries and family members face particular challenges when administering his or her digital estate. After first identifying which digital property is significant, or has value, other obstacles include having to deal with: (1) passwords; (2) encryption; (3) criminal laws penalizing “unauthorized access” to computers; and (4) data privacy laws. Overcoming such obstacles can be tricky—but helpful guidance does exist.

Commentators suggest account holders take four steps to plan for death/incapacity. First, they should inventory their digital footprint by identifying accounts and determining if they have financial or sentimental value. This process should include listing usernames, account numbers and passwords (the average person has 25 passwords). This sensitive list should also be kept separate from their will; a probated will becomes a public record.

Second, account holders should routinely back up electronically stored information—especially if the data is stored remotely—so as to save fiduciaries from having to obtain access from remote service providers that are subject to various federal and state criminal and data privacy laws, like the SCA or CFAA. Fiduciaries would thus only have to deal with the aforementioned service providers in order to close or memorialize accounts.

Third, the account holder should make a plan for managing/distributing the inventoried digital property. This includes designating a fiduciary with power and authority over digital property, providing instructions for distribution, and securely deleting digital assets the decedent does not want passed on to his or her heirs. Understanding a site’s default terms with respect to whether certain accounts will be automatically frozen or deleted is also critical.

And fourth, the account holder should expressly authorize service providers to disclose private information to their fiduciaries so as to evidence their “lawful consent” thereto, and “authorized access” to the data. This can be accomplished by including a clause in a will identifying the above federal laws.

Given the explosion of online content and a comprehensive statutory scheme on the books, digital estate planning may soon become the new normal. Until then, a little knowledge may help stave off the looming specter of digital death.

Is Your Digital Life Ready for Your Death?

The big sleep mode: Preparing for your tech life after death

Your money is tied up in online banking, your digital photos and home movies are stored in the cloud, your entire social life is on Facebook and your important documents live on a password-protected computer — when it comes to the digital footprint you leave behind after you die, there are major practical (and legal) implications for tying up all those loose ends.

While you may have considered what to do with your house after you die, technology and legal experts are now warning that our digital lives need some attention too. A 2013 global survey from McAfee found that we store roughly $35,000 worth of digital assets on our devices — almost the same price as a new BMW.

Speaking to CBS News last month, digital legacy specialist and co-founder of the blog The Digital Beyond, Evan Carroll said laws on digital property vary from region to region, while some people address their digital estate in their will and some don’t.

“We have entered this time as a society where we’re a bit ahead of our laws and our policies with respect to our digital policy,” said Carroll.

In Australia, NSW Trustee & Guardian (the government department that provides legal and estate planning advice for Australia’s most populous state) says that the issue isn’t just one of financial losses.
As an example, the department says 9 out of 10 Australians have a social media account, but 83 percent of these people haven’t discussed what happens with these accounts after they’re gone.

NSW Trustee & Guardian Assistant Director for Legal Services Ruth Pollard said we all add to our “digital legacy” every day, but few of us have steps in place to look after this legacy in the event of death.

“The problem is that it is not as easy to transfer digital assets as it is tangible assets such as a car, house or shares,” said Pollard. “Without planning for death there is a danger that the digital assets will become inaccessible or be destroyed when a person dies.”

“With the increase in storing personal information online it is more difficult for executors to determine just what are your assets. Take for example online banking — it is very difficult for an executor to determine what bank or credit unions a deceased person was a member of [when] there are no obvious paper statements sitting in a folder in a filing cupboard anymore.”

Pollard says all Australians should take steps to future-proof their digital assets and simplify the process of executing their will. And while you may consider yourself too young to be thinking about the big sleep, these tips make good advice for anyone who has left their mark on the digital world.

Preparing your digital legacy

  • “Compile a list of all your digital assets and online services”

Include social media, cloud services, email, banking, PayPal, blogs, photos, video storage, eBooks and anything that you don’t want to slip into the digital ether.

  • “For each account or service list the location, the username and password and what files are stored”

If you have lots of passwords, you might opt for a password manager to simplify this. Pollard also suggests leaving instructions for your executor on digital locations for photos and videos, “otherwise a lot of family history and memories can be lost”.

  • “Check the terms of agreement, licence or policy of your account”

According to Pollard, different online accounts have different conditions for what happens to the account when you die, so it pays to know the difference. “Some social media providers may allow for accounts to be memorialised when a user dies (such as Facebook), but others may not,” she said. “Some providers (for example, Microsoft) may be prepared to provide copies of information, documents and photos on the account to the next of kin or the executor, whereas others may simply close the account or delete the contents.”

  • “Think about what you want to happen to [your accounts and files] on your death.

“Do you want social media accounts closed, or memorialised? Do you want photos or emails downloaded, printed and distributed to family and friends? Consider whether you wish to replace books and music with hard copies as ebooks and music purchased from iTunes and Amazon cannot be gifted by will as you obtain them under licence and cannot own them.”

  • If you’re making local copies of digital information, keep in mind that storage methods change over the years.

“Floppy discs aren’t really used any more…Will it be the same in 10 years time for the current methods of storage we’re using?

  • Lists of usernames, passwords and account numbers should not be put into your Will.

“There may be a number of people including your beneficiaries who will be entitled to have a copy of your Will, and so to ensure privacy and protect against fraud…include these instructions in a separate document and let your executor know where you keep this document.”

All States Should Adopt Delaware's Sweeping New Digital Inheritance Law

All States Should Adopt Delaware’s Sweeping New Digital Inheritance Law

Delaware sure likes being first. The first state to ratify the Constitution just became the first state to enact a broad law that gives families the right to inherit digital assets the same way that they’d inherit physical assets. Now, it’s up to the other 49 states to follow suit.

Inspiration for the new Delaware law, known as the Fiduciary Access to Digital Assets and Digital Accounts Act, comes from the Uniform Law Commission, a non-profit that supplies states with good, non-partisan legislation on a number of topics. The guidance of an organization like the ULC is especially helpful for legislating something like digital inheritance, since states don’t appear to be taking the issue very seriously. So far, Idaho, Nebraska, and Indiana have passed limited laws that address digital inheritance, but no state has pass such comprehensive legislation as Delaware now has.

So what makes it so comprehensive? Delaware’s law—and the ULC legislation that guided it—simply gives the account holder power to decide what happens to his or her digital assets. At present, that power lies with the tech companies in control of the assets. It’s currently impossible, for instance, to inherit the contents of a loved one’s iTunes profile in the same way that you might inherit a record collection. (When you buy iTunes songs, you’re actually just buying a license to play them rather than the content itself.) Inheriting access to, say, a Facebook account, since simply sharing the password would be a violation of Facebook’s terms of service.

All of the United States should do what Delaware’s doing. In the absence of universal adoption, the issue of digital inheritance remains complicated, and while it’s possible to pay organizations to help you with the transition or even set up legal trusts for digital assets, it shouldn’t have to be so hard. And it leads to heartbreak when families can’t even access simple things like digital photos or messages. Think about how terrible the family of a soldier felt when Yahoo refused to give them access to their son’s email after he was killed in Iraq.

Thanks to the ULC’s newly minted Uniform Fiduciary Access to Digital Assets Act, the states don’t even have to write the legislation to deal with digital inheritance. The law is already written and all ready to go! So just go for it, guys. Delaware did a pretty good job leading the way back in 1787. Go ahead and follow its lead once again. [Ars Technica]