Who will get your iTunes when you die?

Do You Have a Digital Estate Plan for Your Online Assets?

Digital lock
Digital lock

In this digital age, people amass an electronic wealth of sorts in social media sites, photo-sharing sites, and online accounts. But what happens to this digital presence when its owner passes away? Who becomes responsible for the disposition and transfer of these digital assets?

Proper digital estate planning, including record-keeping, securely sharing records with attorneys and trusted parties, and creating a plan for the social networks and websites that house digital accounts, should satisfy these concerns.

Estate planning for basic digital assets

Basic digital assets can include multimedia, copyrighted materials, and credits in customer reward programs. “Photos, videos, and blogs that are online, in the cloud, or on a personal hard drive or flash drive as well as e-books, movies, music, and frequent-flyer miles are good examples,” says Michael Wernersback, Senior Regional Fiduciary Manager of Estate Settlement Services with Wells Fargo Private Bank. Digital assets may include social media accounts and content on sites like Twitter , Instagram , LinkedIn , and Facebook .

These electronic valuables can be fleeting as well as precious. Without the proper precautions, they may disappear upon death. Since digital estate regulations are few and social sites typically have their own rules, one of the worst things a person can do is to leave these matters unaddressed.

“When we serve as an executor trustee, it makes our job difficult if someone has done nothing to prepare,” says Wernersback. As with tangible property, if the owner does not keep digital assets in order — if there is no record and no access, or if someone has to wade through disorganized digital property — the executor may miss something, which could be lost forever.

Keeping records
“Take an inventory of digital assets,” says Wernersback. Do you have songs in an iTunes account? Do you have frequent flyer miles? Do you earn income from a blog or website? “Make your executor aware of these things,” says Wernersback. “Talk to your estate planning attorney. See what he or she recommends.” They may suggest adding a fiduciary authority to the will or trust to preserve digital assets upon death.

People also should determine whether they own each asset or simply have a license to it. User agreements often include clauses that define whether an asset can be transferred upon the death of the original user. Reading these user agreements can be very helpful as you formulate your digital estate plan, advises Wernersback.

What to share, what to conceal
Consider recording user names and passwords for assets to enable access after death, but be careful with whom you share that information. “When you pass away, the information is readily available, and people can go in and start managing those assets. But if these passwords fall into unauthorized people’s hands, they have immediate access to all of your information,” warns Wernersback.

Remember that user agreements or prevailing law may prevent someone from using someone else’s password to gain access. “That is another question for the estate planning attorney,” Wernersback cautions.

Being too open with sensitive digital assets, such as those of a financial nature, may not be a wise move, according to Wernersback: “Keep in mind that a will is a public record. Obviously, you don’t want to list your digital assets for everyone to see, and passwords should not be included in a will,” he says.

However, for less financially or legally sensitive assets — photos, movies, and sentimental treasures from the cloud or Flickr — sharing freely with loved ones is not only acceptable but also may be a good idea, says Wernersback. “You may want to grant access to these less sensitive assets before death so that they have immediate control,” he adds.

Status of digital estate law
“People are just now moving their lives online, and the law usually lags behind the technology,” notes Wernersback.

“Only 10 U.S. states [Connecticut, Delaware, Idaho, Indiana, Maine, Nevada, New Jersey, North Carolina, Oklahoma, and Rhode Island] have passed any digital estates laws,” says Evan Carroll, co-author of Your Digital Afterlife . These laws grant rights to executors or others, given adherence to certain conditions. Consult your estate planning attorney about proposed laws in your state.

Digital Assets: Your Online Life After Death

Digital Assets: Your Online Life After Death

290_CitizenDevApp

With rapid advancements in technology there is the increased likelihood that you have created a digital presence and online identity. As time goes by many of our ‘possessions’ are becoming digitised, creating a new category of personal property that being the ‘digital asset’.

What is a digital asset?

A digital asset is anything you may own, or have rights to, that exist either online or on hard storage devices. Some examples of your online assets include email, social networking, iTunes, cloud storage and financial accounts. Hard storage devices include assets such as computers, laptops, USB, smart phones and any other external storage drives which are locked by way of encryption.

Why is important to consider our digital assets in estate planning?

Whilst we are creating personal digital assets at an unprecedented rate, the laws governing them have not developed simultaneously. It remains unclear where the notion of digital assets fits among other traditional concepts of property. Therefore in order to protect these assets, it is important to make separate provision for dealing with them in your estate plan.

It is important to deal with these assets for various reasons. This includes the prevention of identity theft, to have your history and memories recorded and your wishes expressed, to continue the management of any online business, to assist your executors in the estate administration process and also for preventing any litigation which may be required in being able to gain access to such assets.

Furthermore, whilst the value of a digital asset may vary, the particular type of value of the asset may be significant for a loved one or beneficiary. For example, the asset may have sentimental value such as digital photos, or it may have significant monetary value such as a professional blog or writing.

How do I include digital assets in my Estate Plan?

The first step is to create a digital inventory of all your assets. This inventory will need to include the names of all your assets and where they are stored, as well as all the usernames, passwords and secret questions which will allow a nominated person to be able easily access them upon your incapacitation or death.

It is then important to think about what you’d like to happen to these assets upon your incapacitation or death. For example, would you like to have your Facebook account closed down or memorialised? Is there someone in particular you would like to have access to your iTunes account?

Once you have made the inventory and considered what you would like done with your assets, it is then important to make your wishes legally binding by formalising them in a Will and Enduring Power of Attorney.

Incapacity

The most important part of planning for incapacity is to execute an Enduring Power of Attorney. This document will allow you to appoint someone that you trust to deal with your digital assets effectively and properly in the event you are incapacitated and can no longer control the accounts yourself.

Death

Your Will is the document which addresses how your assets will be dealt with upon your death. Therefore it is important that your Will make provision for and include a clause that will give power to your executor to handle and manage your digital assets in accordance with your wishes and the terms of your Will.

Your executor, being the person you have nominated to administer your estate, should also have access to your inventory of your digital assets. This allows them to know what assets exist and where to locate them. The inventory should remain separate from the Will and should be updated as required.

The concept of ‘digital assets’ is no longer an idea of the future but rather it is very real and present right here and now. Therefore, it is prudent to seek advice from a solicitor in relation to your digital assets and your estate planning needs. A solicitor is best equipped to provide you with appropriate advice on how to best to structure your affairs in order to ensure your digital assets are dealt with effectively in your estate plan. For advice on Wills and Estate matters contact Jason Coluccio or the team at Welden & Coluccio Lawyers.

Who will get your iTunes when you die?

An electronic immortality

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

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

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

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

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

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

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

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

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

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

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

The forgotten assets: Protecting your client's digital assets at death

Estate Planning for Your Digital Legacy

I recently met a couple who were both digital artists. They each had their own computers that stored decades of digital art work. The husband jokingly said, “If something were to happen to me tomorrow, make sure you bury me with my hard drive.” His work was his life and he wanted to make sure that it followed him regardless of his state of mind.

The conversation brought up an interesting discussion on digital assets. What does happen to your hard drive if you were to become incapacitated or die? Additionally, most of us now partake in documenting our lives through accounts like Facebook, LinkedIn, Twitter, and Instagram. Our thoughts and pictures and recordings on these platforms create an intimate digital record of who we are, where we have been, who our friends and business associates are. This record is far more nuanced and revealing than any diary could ever be. Moreover, if you have a blog, domain name or an online store, your livelihood may be locked up in your computer’s hard drive, along with your other important files.

As more of our lives are lived in the virtual world, it is imperative that you make plans for what will happen with your online accounts upon your incapacity or death. Planning for digital assets will ensure your privacy is protected, preserve your personal history or digital work, and make things easier for your personal representative and family.

Each online service has its own rules for who can access your accounts. For example, Google services and applications are subject to the Terms of Use agreement between the company and the user and those rights are not extended to family members and heirs. This is perfect planning if you don’t want anyone to read your private emails. But, there is likely valuable information in your Gmail account like billing notices and financial communications that you want your personal representative to be able to access and Google’s policy could pose a problem.

Some states are addressing these technological issues with legislation that makes it easier to manage accounts after death or incapacity. For example, Delaware recently became the eighth state to pass a law that governs how digital assets are treated when a person dies or becomes incapacitated. In the most comprehensive law of its kind, digital assets in Delaware will be treated the same as personal assets upon a person’s death or incapacity. The companies holding the digital assets are required to grant access and control to the personal representative of the estate. This law will be powerful for those who are settling estates in Delaware, and undoubtedly other states will be passing and updating legislation relating to digital assets in the coming years. However, even without a comprehensive law, there are ways to protect your digital assets in an estate plan.

If you would like to control who can manage your digital assets after your incapacity or death, you can work with an estate planner to create specific estate planning authorizations. For example, in California, where I practice, I have been including in client documents a provision that a trustee is authorized to access digital accounts and digital devices. I also draft an Assignment of Digital Assets to include with their estate planning documents—which assigns digital accounts, domain names, software, computers, tablets, smartphones, into their trust. I advise clients to think about what they want to do with their digital assets and create a separate letter that details how you want each item or account handled.

It is also wise to keep an updated list of all accounts and passwords so that your personal representative can easily access your accounts. This list should also include passwords for your debit card, house alarm, smartphone, and computer; and answers to security questions (mother’s maiden name, favorite movie, city born). It would be helpful to your personal representative if you included a list of automatic payments and when they are debited to your account. Obviously, this is sensitive information, so you will have to decide what you are most comfortable with. There are online services that allow you to save all of your passwords and name trusted individuals to access them if you are not able. Knowing your passwords will be priceless to someone who has to step into your shoes if you become disabled or when you die.

The digital world brings with it new considerations and the time to include this into your estate plan is now.

Do You Have a Digital Estate Plan for Your Online Assets?

Do You Have a Digital Estate Plan for Your Online Assets?

In this digital age, people amass an electronic wealth of sorts in social media sites, photo-sharing sites, and online accounts. But what happens to this digital presence when its owner passes away? Who becomes responsible for the disposition and transfer of these digital assets?

Proper digital estate planning, including record-keeping, securely sharing records with attorneys and trusted parties, and creating a plan for the social networks and websites that house digital accounts, should satisfy these concerns.

Estate planning for basic digital assets

Basic digital assets can include multimedia, copyrighted materials, and credits in customer reward programs. “Photos, videos, and blogs that are online, in the cloud, or on a personal hard drive or flash drive as well as e-books, movies, music, and frequent-flyer miles are good examples,” says Michael Wernersback, Senior Regional Fiduciary Manager of Estate Settlement Services with Wells Fargo Private Bank. Digital assets may include social media accounts and content on sites like Twitter , Instagram , LinkedIn , and Facebook .

These electronic valuables can be fleeting as well as precious. Without the proper precautions, they may disappear upon death. Since digital estate regulations are few and social sites typically have their own rules, one of the worst things a person can do is to leave these matters unaddressed.

“When we serve as an executor trustee, it makes our job difficult if someone has done nothing to prepare,” says Wernersback. As with tangible property, if the owner does not keep digital assets in order — if there is no record and no access, or if someone has to wade through disorganized digital property — the executor may miss something, which could be lost forever.

Keeping records
“Take an inventory of digital assets,” says Wernersback. Do you have songs in an iTunes  account? Do you have frequent flyer miles? Do you earn income from a blog or website? “Make your executor aware of these things,” says Wernersback. “Talk to your estate planning attorney. See what he or she recommends.” They may suggest adding a fiduciary authority to the will or trust to preserve digital assets upon death.

People also should determine whether they own each asset or simply have a license to it. User agreements often include clauses that define whether an asset can be transferred upon the death of the original user. Reading these user agreements can be very helpful as you formulate your digital estate plan, advises Wernersback.

What to share, what to conceal
Consider recording user names and passwords for assets to enable access after death, but be careful with whom you share that information. “When you pass away, the information is readily available, and people can go in and start managing those assets. But if these passwords fall into unauthorized people’s hands, they have immediate access to all of your information,” warns Wernersback.

Remember that user agreements or prevailing law may prevent someone from using someone else’s password to gain access. “That is another question for the estate planning attorney,” Wernersback cautions.

Being too open with sensitive digital assets, such as those of a financial nature, may not be a wise move, according to Wernersback: “Keep in mind that a will is a public record. Obviously, you don’t want to list your digital assets for everyone to see, and passwords should not be included in a will,” he says.

However, for less financially or legally sensitive assets — photos, movies, and sentimental treasures from the cloud or Flickr  — sharing freely with loved ones is not only acceptable but also may be a good idea, says Wernersback. “You may want to grant access to these less sensitive assets before death so that they have immediate control,” he adds.

Status of digital estate law
“People are just now moving their lives online, and the law usually lags behind the technology,” notes Wernersback.

“Only 10 U.S. states [Connecticut, Delaware, Idaho, Indiana, Maine, Nevada, New Jersey, North Carolina, Oklahoma, and Rhode Island] have passed any digital estates laws,” says Evan Carroll, co-author of Your Digital Afterlife . These laws grant rights to executors or others, given adherence to certain conditions. Consult your estate planning attorney about proposed laws in your state.