It is critical to assess the value of digital records and assets, and to make sure they are integrated into succession plans. By Sarah Z. Collins We now live a big part of our lives online. In the digital world, people meet, shop, interact, bank and save. The cloud […]
Digital Experts: Top Ten Guidelines On Death In A Digital World
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Two digital experts, one focused on behavior and the other on technology and law, agree—it’s time for guidelines on digital death, from Directive Communication Systems.
“We are still in the Wild West of the digital age, so people don’t know that what they’re doing can be harmful. Well-meaning people don’t know they can innocently stir up emotions, cause others to lose financial and sentimental property and even encourage fraud. “
A mother is told to go to the hospital after learning that her son has been in a bad car crash. When she arrives, the waiting area is filled with somber high school students. They knew about the crash before she did.
Two digital experts, one focused on behavior and the other on technology and law, agree—it’s time for guidelines on digital death.
Lee Poskanzer, founder of Directive Communication Systems and Dr. Carla Sofka, Professor of Social Work at Siena College and co-editor of “Dying, Death and Grief in an Online Universe,” offer ten tips on grief and loss for the digital world:
1 – Think before you tweet, post or pin. If it’s not your spouse or partner, your parent or your child, a death is not your story to share. This is about privacy and personal ownership. Digital users expect to share news as it happens, but death notification is a private matter.
2 – Don’t sensationalize another person’s tragedy. Sharing grim details can be disturbing and painful. Images and recordings should not be posted without the express permission of the family.
3 – Find out what the family’s wishes are before posting anything. It’s important to know what the family wants to share and what they would prefer to keep out of the public eye.
4— Be alert for fraud and tell the family if you see something online that does not seem right. Death notices are often the starting point for identity theft. Keep an eye out for impersonation of the deceased in profile posts and report them to the authorities immediately.
5 – Don’t contact social media platforms about someone else’s death. Contacting websites’ Customer Service can create significant and irreversible problems. Data, photos, cryptocurrency and emails can be permanently locked out and/or destroyed when well-meaning individuals contact digital platforms.
6 – Don’t dismiss the positive use of social media. Digital users, particularly teens, turn to social media for immediate emotional support from their online communities. By connecting with others, they feel less isolated. Try to be understanding if someone’s style of grieving is more public than yours.
7 – Accept strangers who post respectfully—they are part of the grieving community. Dr. Sofka has coined the term “experiential empathy” to describe people who are strangers to a family or a community but connect with them online because they have a shared loss.
8– Be thoughtful when sharing your message of grief and support. Be authentic and sincere. A short message that will remind others of what the person meant to you will be appreciated.
9 – Acts of kindness are always welcome. IRL (In Real Life) or online, it’s hard to go wrong when you are showing support, sharing grief and memories.
10 – Take proactive steps to protect your own family and your own digital assets for the unexpected. Speak with family members about your own wishes, regardless of your age or health. Look into what is most effective for accomplishing your goals. Create a plan for managing your digital assets after your death, including how you want your family to share the news of your passing. Note that password sharing is a violation of the Terms of Service Agreement with website owners, and could result in the loss of digital assets, including photos, videos, emails, digital artifacts, cryptocurrency and more. Consider using 3rd party services and experts in digital asset directives management to handle these personal and private matters.
Directive Communication Systems (DCS) is the market- leading guardian of digital assets. We serve estate professionals and individuals planning their estates, loved ones left behind, fiduciaries and website owners. DCS is the only digital asset and directives service to meet requirements of federal and state laws and website Terms of Service Agreements. Visit us at http://www.directivecommunications.com, Linked In, Twitter @directivecomms.
Dr. Carla Sofka is a professor of social work at Siena College in Loudonville, NY. Prior to her academic career, Dr. Sofka was a clinical social worker who worked in geriatric, medical, psychiatric, and hospice settings. She writes and teaches about the impact of technology on how society learns about and copes with life-threatening illness, death, and grief. She is a frequent speaker at conferences and conducts workshops, webinars, and podcasts. In addition to contributions to numerous journal articles and book chapters, she is a past-president of the Association for Death Education and Counseling.
I Needed to Save My Mother’s Memories. I Hacked Her Phone.
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Several days after my mother died in a car accident, my two sisters and I sat together in her apartment, stunned and overwhelmed. High on our horrible to-do list — along with retrieving her smashed vehicle from the tow lot, making burial plans and meeting with the rabbi — was this: getting into her cellphone.
Everything we needed to get her affairs in order was on her phone. Her contacts would tell us who to reach out to about the memorial service. Her email would tell us whether she had made plans we needed to cancel. Her finance apps would tell us whether she had been paying bills electronically. And there would be personal information, too. Her texts to family and friends. Her notepad. Her photos. The e-book she had been reading on the flight home in the hours before the accident as she left the Tulsa International Airport.
Luckily, Mom had given me the passcode to her phone only a month before. When we felt ready, I turned on her iPhone in its pink plastic case and typed in the code.
I typed in the code a second time. Again, nothing. My sisters and I looked at one another. A tightness gripped my stomach as I realized that the code Mom had given me couldn’t possibly work: That code had contained four digits, and her phone was asking for six.
Six digits means one million possible combinations, and her phone would give us only 10 tries before Apple would erase all of her data. Her old passcode had been the last four digits of the phone number at our childhood home, which ended in a zero. We decided to add two zeros to the end and were so confident that we knew how Mom’s brain worked that I paused dramatically before I tapped in the final zero, certain it would work. It did not.
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After that failure, my sisters and I treated every one of the remaining tries like some sort of nuclear access code. We made a few more attempts, none successful. With each failure, the phone made us wait longer between tries. Eventually we decided it was best to stop and find a different way in — the risk of permanently erasing everything was too great.
As a historian and biographer, I’ve made a career of reconstructing lives. To do that, you need information. The people I study and write about are entrepreneurs, innovators, famous and wealthy individuals. Their lives have been well documented in countless ways, including television interviews, newspaper and magazine articles, congressional testimony, patent records and the corporate archives of companies they founded. It’s relatively easy to reconstruct those lives, particularly if there are still friends and colleagues to help fill in the blanks.
Mom left no public record aside from a letter to the editor published in The Tulsa World. Instead, she had a dusty purple plastic bin she labeled “Memorabilia” with a Magic Marker. Inside were a prom program, a love letter from a boyfriend we had never heard of and hundreds of drawings, photos and notes from her grandchildren or us sisters as children. She had the photo albums she had made when we were little. A safe deposit box held her citizenship papers and other legal documents.
Nearly anything from the past 20 years existed only online, locked away behind passwords and firewalls. Notwithstanding the cards she made by gluing New Yorker cartoons onto cardstock, her written communications essentially stopped in the early 2000s, when she got an email account. She was a great texter, pouncing to be the first to respond in any group and embracing emojis with the passion of a preteenager. Her social media posts were politically passionate and at times head-scratchingly random.
I valued these public things, of course, but I also wanted more. We document our lives in two ways, one intended and one not. There are the emails we send, the photos we post and the comments we debate and wordsmith before hitting Return. And then there is the inadvertent record: the enraged first drafts, the unflattering selfies, the record of purchases at Amazon or Netflix, the digital sticky notes we had not meant to keep.
We work hard to curate the public self and rarely think about the shadow self. I knew from my own work, however, that off-the-cuff notes, old receipts, call logs and calendar entries can serve as proxies for feelings. A run of doctor’s appointments, a glut of calls to the same phone number that never picks up, the purchase of five types of acne cream or a self-help book — these are clues. When we are alive and artificial intelligence assembles these clues to hazard an eerily accurate prediction about our interests and future desires, we are horrified. But for a historian looking at the life of someone who has died, the same clues can lead to understanding.
As a daughter, my heart broke at the realization that digital records, along with the stories from those of us who loved Mom, were going to be the best way to be with her again, to learn from her again or to laugh again at her stupid jokes. But as a historian, my mind raced. If the only way to preserve her memories was to put together the pieces of her digital life, then we had to hack into her online accounts.
After a frantic hunt, my middle sister found a small pocket calendar in Mom’s desk. The back pages were filled with handwritten login IDs and passwords. I patted myself on the back for having insisted Mom record her passwords, and we sisters rejoiced … for about five minutes. At site after site, login page after login page, every attempt failed.
The only login and password combination that worked was for her Apple iCloud account, but she had protected it with two-factor authentication. We could see that her phone was receiving texts — texts from Apple containing the codes needed to get into her account — but we couldn’t unlock the phone, so we couldn’t see the code. I called a few high-powered techies I know from working at Stanford and living in Silicon Valley, but none of them could help. It seemed we would be locked out of everything.
Eventually I found a savior — a young employee at an Apple Store. I explained to him that I had Mom’s login ID (an email address) and the password for her Apple account, but I couldn’t override the two-factor authentication. He asked me to enter the login and password, and he grimaced when her locked phone lit up with the authentication code we could not see. Then his expression changed. “Let’s try her SIM card,” he said.
A phone’s SIM card is no bigger than the fingernail on your pinkie finger, but it is of vital importance. It gives your phone its unique identity, making it possible to associate the physical device with a specific mobile carrier and phone number. You can pop the card out of your phone by inserting a paper clip in the tiny hole you might have noticed on the side of your phone. Moving a SIM card from one phone to another is how most people move their phone number when they upgrade their devices.
The employee ejected the SIM card from Mom’s phone and put it in his own. His phone now had her phone number. We logged into Mom’s iCloud account again. This time we clicked the link that said we had not received the original two-factor passcode sent to the phone as a trusted device. We requested another be sent to her phone number. An instant later, his phone buzzed with the code. “O.K. to input this?” he asked. My heart pounded at the thought of this young stranger being with me when I peeked into Mom’s hidden digital life for the first time, but I nodded approval. He typed the code on the site.
Boom: We could see her Apple mail, her memos, her bookmarks and her photos. We had recovered a key to unlock her digital world.
At home, I put Mom’s SIM card into my husband’s phone so that it could receive texts sent to her number. Now, with her login ID and control over her phone number, I could impersonate her. At every website, I said that I forgot her password. The website tried to confirm her identity by texting a code to Mom’s registered phone number — and the code would go straight to my husband’s phone. Once I was logged in, I could then change both the password and the trusted phone number that would thereafter be associated with the account. Every time a page opened up with her name at the top, I felt a mix of elation and nausea.
It took hours, but I gained control of her email accounts, her Amazon account, her cable provider and the sites for her credit cards. We never did figure out the passcode to her phone, which means I will most likely never see the iMessages or other encrypted information. Otherwise, I now have access to almost all of her digital history.
After all that work to crack Mom’s accounts, I haven’t looked at them. It has been six months, but it’s still too soon. Looking through her digital life will mean remembering her before she was gone, back when I was a daughter with the luxury of being annoyed by her calls or texts, back before she or I understood in the visceral, never-going-back way I do now that it was all going to end. I haven’t even listened to the voice mail messages from her that I still have on my phone. I do know they almost all begin in the same way: with a pause and then her voice saying, “It’s just me.”
Leslie Berlin, a historian at Stanford, is the author, most recently, of “Troublemakers: Silicon Valley’s Coming of Age.”
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Estate Planning in a Digital World
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More and more of our daily activities are moving online. All aspects of our lives –whether financial, social, work or leisure — increasingly have a presence on our computers or the Internet. Smart estate planning, therefore, includes addressing how to handle digital assets.
Historically, estate planning consisted primarily of physical and financial assets, including items like real estate, jewelry, cars, furniture, coin collections, cash and marketable securities. Today, you also need to consider your digital assets.
- As more of our personal and financial data move online, it’s critical to ensure your estate plan addresses how to handle your digital assets.
- Since online policies around digital assets continue to evolve, planning for the administration of digital assets poses some unique challenges.
- Incorporating digital assets into your estate plan and setting up a regular process for updating this information are smart ways to ensure your survivors can easily manage these assets and your wishes in this area are fulfilled.
A few examples of digital assets to include in your estate plan:
- E-Mail accounts;
- iTunes libraries;
- Kindle book collections;
- Blogs or Web sites;
- Facebook and Twitter accounts;
- Digital photographs and videos;
- Online shopping accounts;
- Memberships or subscriptions with credit-card information, as well as online bank and investment accounts and medical information;
Determining how to access and manage all of these different types of assets can quickly become overwhelming for your survivors if there isn’t a clear plan in place.
Estate Planning Basics
Estate planning is a process designed to help you:
- Manage and preserve your assets while alive;
- Conserve and control their distribution after your death according to your goals and objectives.
What estate planning means to you specifically depends on your unique circumstances. Your age, health, wealth, lifestyle, financial goals and many other factors determine your particular estate-planning needs.
Once an initial estate plan is in place, you should review it periodically to ensure that any changes in your wishes or situation are reflected.
Estate Planning Considerations for Digital Assets
While estate planning for digital assets follows the same basic process as planning for physical assets, it comes with some unique challenges:
- The media in which a digital asset resides may be owned by the deceased or by another entity;
- Digital assets are transitory in nature and subject to constant change;
- Legal considerations such as intellectual property and privacy laws further complicate the area of digital inheritance.
A digital estate consists of the digital-media rights that can be inherited. Along with your online presence, your digital estate includes data stored on personal devices like tablets, computers and smartphones. Two principal issues can arise over a person’s digital estate. First, the data or copyrights that belong to the deceased and can be inherited; and second, access to the deceased person’s digital estate by an executor charged with dealing with it.
Planning Tips for Digital Assets
The good news is that individual states have introduced standard governance guidelines for estate planning and digital assets. Adopted in many states and being considered in several others, the revised Uniform Fiduciary Access to Digital Assets Act provides clear rules pertaining to how an executor can manage digital assets following the death of the owner.
As you look to add digital assets to your estate, the following are some tips to get you started. You may also want to consult with your financial advisor and attorney to ensure your plan is incorporated into your regular estate plan and updated on a regular basis.
- Take an Inventory of Your Digital Assets. Start by making a list of all of your digital assets. Make sure you include any hardware — such as computers, tablets or smartphones, important computer files or documents and all online accounts.
- Identify Someone Who Will Handle Your Digital Assets. The person you have identified to handle financial matters when you are gone may not be the appropriate person to handle your digital assets. You also want to make sure you have the right team of advisors in place to help your survivors deal with these issues.
- Document Passwords to Allow Access to Your Accounts. While you are often cautioned to not write down this information, it can be helpful to your heirs and advisors to have easy access to this information in the event of your death. Given that this information will also change over time, you should plan to regularly update this document. You can keep this list in a safe deposit box or somewhere secure at home, letting your attorney or other trusted person know the location of the list.
- Provide Detailed Instructions. Make sure that your wishes are known for your digital assets after your death. Do you want your family to post funeral information on your Facebook or Twitter feed? Are there sites that you want closed down or left open? Are you earning income from a personal blog or YouTube video channel where your beneficiaries might benefit from an ongoing revenue stream? The more detailed the instructions you leave, the easier it will be for your survivors to know what to do and to ensure your final wishes are fulfilled.
- Give Appropriate Authority. Along with assigning management of your digital assets to one of your heirs and the appropriate advisors, you may also want to see if you can assign someone to act on your behalf for your online accounts to make it easier for them to be managed when you are gone.
Start Planning Today
Our digital presence continues to grow as new technologies are introduced and as we adapt to these solutions more and more. Including information on how to access and manage your digital assets in your estate-planning documents is a critical step to ensuring that your heirs can more easily manage your affairs when you are gone.
To learn more, please contact a Key Private Bank Relationship Manager.
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This piece is not intended to provide specific tax or legal advice. You should consult with your own advisors about your particular situation.
Any opinions, projections or recommendations contained herein are subject to change without notice and are not intended as individual investment advice.
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Is Your Estate Plan Out Of Date? Probably (And Facebook Is Likely To Blame)
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We live in a digital world where traditional assets like photo albums, businesses, marketing materials and financial assets are moving online. Just look around – the most valuable companies in the world are technology companies that do most of their business online.
Even money has been digitized through cryptocurrency developments. This digitalization of the world is challenging traditional estate planning techniques, and laws and best practices often lag behind technological advances.
Digital assets create a few unique challenges traditional physical assets do not have.
- digital assets can be difficult to find online as there is an endless amount of information available.
- accessing the assets can be challenging because most assets stored online are protected by a username and password.
- ownership rights of online assets are less clearly defined than traditional assets.
So perhaps the first questions to ask is this: What are digital assets and are they important?
Digital assets are not the physical devices we use to access and store information like computers and iPhones. They are the valuable information stored on those digital devices. Your e-mail account, website, software program, cryptocurrency, credit card reward points, blog posts, Facebook and online photos are all examples of digital assets. For my ten step planning checklist for digital assets click here.
Digital assets are important for three main reasons.
- There is real monetary value in digital assets. A study by McAfee showed that the average person worldwide had over $35,000 of digital assets and Americans had value of over $55,000 back in 2013.
- Many digital assets present sentimental or lifestyle benefits. Emails between family members or online photos might not have substantial financial value but do have a lot of sentimental value to heirs who would want access to the assets.
- Digital assets left alone after death also represent a huge risk due to post-mortem online theft or abuse. Over 70 percent of online users are concerned about identity theft or fraud when online.
I know of one family in which the husband unexpectedly died. He handled all of the couple’s finances, emails, online accounts, bill pays and even accounts with online retailers.
Once he passed away, his wife didn’t know where to go online, how to access their emails or pay bills, or how to close down any of the sites that contained contact information, bank accounts, credit cards and other personal information. In the end, services were disrupted, and bills were overdue because the couple had gone paperless and notices were only going to the email of the deceased husband.
Later on, someone hacked one of the websites and stole the couple’s information. The surviving spouse never knew until multiple new credit cards were set up in her deceased spouse’s name and bills started coming in months later.
This is a real story, and it is not an isolated incident – it’s happening to thousands of people each year because of a lack of awareness about the importance of digital asset planning and digital asset management.
So if someone says they have an estate plan in place to cover all their assets, you can rest easy knowing their digital assets are covered, right? Unfortunately, traditional estate planning techniques are inadequate to cover digital estate plans today.
First, you need to specifically track where your digital assets are online and keep track of login information. It is not as easy as just sorting through a person’s attic, drawers, garage, basement and safety deposit box to find their online accounts. One step is purely tracking and managing existing assets.
Next, you need to understand ownership rights of the digital assets. For instance, most of the ownership rights in digital assets are set when the individual agrees to the Terms of Service Agreement (TOSA) with the online service provider – you know, the agreement you scroll all the way to the bottom of and hit “I Agree” without reading anything. Unfortunately, no one reads these documents.
What does a TOSA say? Mostly, these agreements state that your online accounts cannot be transferred to anyone else upon your death, leaving these assets in a state of eternal limbo, and instead creating a non-transferable lifetime lease in the online account and service.
Another challenge for digital asset planning is that traditional wills struggle to keep track of digital assets. Because passwords change regularly and new accounts are constantly set up, in addition to the will becoming public through probate, the will is not a good place to list assets, passwords and locations of important documents and other items.
Instead, you will have to be much broader in your approach inside the will. However, there are federal laws under the Computer Fraud and Abuse Act and the Electronic Privacy Act that can make sharing passwords, if against the TOSA, a federal violation. So just keeping track of your accounts and passwords without checking and seeing if you have the legal authority to share them, could also be problematic.
Furthermore, laws in this area have just started to develop. Almost every state has now passed a version of the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which provides some guidance in planning for digital assets in the event of incapacity or death.
Essentially, RUFADAA provides a clearer framework for how access to digital assets will be handled. First, if the service provider allows for a beneficiary-like transfer system, that will take priority. Next, traditional legal documents would have authority, but only if they are correctly drawn up. Next, if neither of the other two are in place, you would look to the TOSA. In the event that no direction is given by anyone, it is likely you would then revert to traditional state common law and estate practices.
However, it is also important to remember that RUFADAA cannot change ownership of assets as set by the TOSAs. If you agree this is a non-transferable lifetime lease when you set up the online account, it remains a non-transferable lifetime lease. This can lead to improper ownership of assets in many cases and create serious challenges for small businesses.
Instead, RUFADAA aims at allowing access to digital assets to certain fiduciaries laid forth in legal documents or through another process. This allows fiduciaries to have access to the online accounts to manage them or close them in the event of death, disability or incompetency, but only if the owner affirmatively gave the fiduciary this management control in the applicable trust agreement, will or power of attorney document.
Essentially, fiduciary access to digital assets will be treated as a “hot power,” meaning that you must specifically grant the fiduciary access to “digital assets.” Just saying your fiduciary has access to all your assets won’t work! This also means most existing wills, trusts, and powers of attorney are out of date and you should update them immediately to include current digital asset language.
While almost every existing estate planning document needs to be updated, just updating documents is not enough either. Digital asset planning also requires planning as to which accounts you want memorialized, continued, or deleted and what information you want preserved or removed. In some cases, new accounts will need to be set up or assets moved from one spouse to another or from an individual to a company. True digital asset planning will be part risk management and part ownership review.
Attorneys also need to discuss digital asset management and planning with clients. With small businesses, even a brief delay in access to their online accounts could be devastating. You also want to ensure that the client has a process for tracking their online accounts, keeping usernames and passwords safe, and, if desired, provide insight into how they want their accounts managed in the event of incapacity or death. The client might want some accounts destroyed or deleted and other accounts passed on to someone else.
Digital assets are growing in value and need to be part of your practice. Find out how your state is handling these assets, update your documents and discuss these digital assets with clients, especially those clients with small businesses.