My dad is one of those people who refuses to touch a computer and loves his old flip-style “dumb” phone. If you’re like my dad, you can probably skip this article. But if you’re someone who uses a computer, smartphone, or any other type of electronic device, please read on.
When thinking about estate planning, it’s easy to overlook your digital life. By addressing this issue now, you can help your family after you’re gone by allowing them to more easily locate contact information for your friends and colleagues, locate and access your online accounts so that they can be closed and any property in them distributed appropriately, and locate any important information (such as family photographs) that you have stored on digital devices.
Putting a plan in place to deal with all of your digital devices and accounts can feel overwhelming. To help make it a bit more manageable, I suggest breaking the task into the following steps: (1) make a list; (2) decide what you want done; (3) choose someone to be in charge; and (4) store this information securely.
Make a list – For most people, this will be the most time-consuming step. One way to attack this is to divide your digital assets into categories. For example, categories could include hardware (like computers, external hard drives, flash/thumb/USB drives, tablets, smartphones, e-readers, digital music players, and digital cameras), online financial accounts (like banking, credit cards, PayPal, frequent flier miles, insurance, retirement plans, stocks, and brokerage accounts), email and social media (like Yahoo, Gmail, Facebook, Instagram, and LinkedIn), online storage sites (like iCloud, DropBox, or Flickr), and any websites/URLs or blogs you own or manage. At a minimum, include all user names and passwords. Also, it’s a good idea to list any recurring payments you have set up through your bank accounts or credit cards, like utilities, insurance premiums, tuition, or loans. Be sure to update your list as you add or delete accounts or change passwords.
Decide what you want done – Once you know what your digital assets are, you can decide how you want to deal with them. First, as you make your list, if you find that you have any accounts that you don’t use any more, close or delete them now so your loved ones have less to deal with later. Next, for your online accounts, especially social media, check the policies for each site. Some sites, like Facebook, Google, and Instagram, give you options for how you’d like your account handled after your death. For many other sites, the only option is for someone to contact the site after your death. For digital photos or other electronic files on your devices (like original music or videos, recipes, or letters or stories you’ve written), write a letter of instruction for how these assets should be handled and keep the letter with your will and other estate planning documents.
Choose someone to be in charge – If you have a will (and if you don’t, get one!), you’ve already chosen someone to be in charge of managing your estate after you die. In Indiana, this person is called your personal representative. However, your personal representative might not be digitally savvy (like my dad) and therefore not the best person to handle your digital estate, so you may want to name someone else to deal with your digital assets. Also, although Indiana law gives personal representatives some authority over digital accounts, some companies may be reluctant to deal with anyone unless your will specifically authorizes them to access your accounts.
Store this information securely – There are many different ways that you can securely store information related to your digital assets. For example, there are dozens of “password manager” and “online vault” websites and smartphone apps that will let you store your passwords. Generally how these sites/apps work is that you create one master password for the site/app that then allows you (or your digital personal representative to whom you’ve given your master password) to access your list of other passwords. The websites/apps can vary greatly in regards to features and price (there are some good free ones), so be sure to do your research if you go this route. If you prefer something more traditional, options such as a safe deposit box, home safe, or memory stick could work. Just be sure that your digital personal representative knows where the information is and has access to it. Whatever method you choose, don’t put this information in your will, which will become a publicly accessible document after your death.
As with most estate planning issues, the challenges and complexities of creating a plan for digital assets vary with each person’s individual needs and circumstances. If you haven’t already made a plan for how your digital assets should be handled after your death, consider contacting an estate planning attorney to discuss your situation in detail. It’s never too soon to start planning.
Carrie S. Cloud is an attorney practicing at 146 E US Highway 52, Rushville, Indiana 46173. The information in this article is for general informational purposes only and is not legal advice.
What happens to your digital property when you die? This can be a very challenging issue for your executor when settling your estate.
You can make your executor’s job easier by listing all the electronic devices and online services that you use. With a letter of direction, you can tell your executor what should happen to them after you die.
Use an address book or worksheet to alphabetically list your devices and online accounts. Then tell your executor where to find your list. User names and passwords on your inventory list are the keys to open the doors to your electronic devices and keep online accounts active.
Remember that Canada’s privacy laws make it difficult for your executor to take over the online accounts of another person. When you sign up for an online account, the terms of service agreement restricts access to the account-holder only. That means you cannot bequeath your social media account, video game account, or gambling account to a beneficiary even if they have great value.
In the U.S., many states have created laws to give an executor the right to access and manage digital assets of a dead person. No similar laws have been enacted in Canada yet. Until our laws are updated and service providers change their policies, Canadians can include clauses in their wills that give executors permission to deal with digital assets.
Your executor can browse your email messages to track down estate assets. Email messages give clues about bills to be paid. Email reminders to download T5 and T4RIF slips can lead to financial accounts. Your emails will reveal confirmations of business, gaming, streaming and shopping transactions.
Maybe you have YouTube videos or a blog that generates advertising revenue. If you are receiving thousands of dollars per month in payments from ad clicks, your executor would want to maintain that revenue stream.
Do you own a valuable domain name? Remind your executor to pay the fee to renew the registration until the domain name is sold.
Your executor should find all your electronic hardware such as smartphones, tablets or laptop computers. Keep these devices and safeguard them until data can be extracted. Once all online accounts have been closed or transferred, electronic devices can be stripped and passed along with other estate assets.
After you have died, your executor can access and delete your Facebook, Twitter and LinkedIn accounts by knowing your passwords. What if the family wants continued access to their loved one’s online photos and personal messages? Social media websites will eventually take steps to protect privacy as a standard security procedure.
Facebook allows family members to either delete or “memorialize” the accounts of a deceased user. In a memorialized account, a person’s existing friends network can leave comments and photos but nobody has permission to log in or edit the account.
Music, e-books and photos
Who gets your collection of digital photos and videos in online cloud storage and social media sites after you die? Some digital assets cannot be legally bequeathed to anyone. You pay for a personal licence to use digital files, such as iTunes music and e-books. These personal rights expire when the user dies.
Even if you bequeath your iPad to a family member, you cannot bequeath the apps you have purchased and installed on your iPad.
Thieves can use a dead person’s information to create a fake identity to rack up credit card charges and apply for loans. Your executor can safeguard the estate by notifying credit agencies of the death.
Terry McBride, a member of Advocis, works with Raymond James Ltd. The views of the author do not necessarily reflect those of Raymond James Ltd. Information is from sources believed reliable but cannot be guaranteed. This is provided for information only. We recommend that clients seek independent advice from a professional adviser on tax-related matters. Securities offered through Raymond James Ltd., member of the Canadian Investor Protection Fund. Insurance services offered through Raymond James Financial Planning Ltd., not a member of the Canadian Investor Protection Fund.
The Digital Legacy Association is encouraging those who work in palliative and end of life care to help patients think about and make plans for their digital assets, online accounts and electronic devices, with the launch of a new leaflet.
As part of Dying Matters Awareness Week (9 to 15 May), The Digital Legacy Association has launched a new leaflet aimed at helping individuals to get their digital affairs in order.
It encourages people to think about what they want to happen to their social media accounts (like Facebook) after their death and who, if anyone, they want to have access to their mobile phone and other electronic devices.
“As we spend more time using the internet and on electronic devices it is becoming increasingly important for us to make plans surrounding end of life that are suitable to the ways in which we live,” explained James Norris, founder of The Digital Legacy Association.
The launch of the new resource coincides with a new data released by Dying Matters today which found that 40% of British adults wouldn’t unfriend someone they know on Facebook after that person died.
The survey of 2,000 adults by ComRes also found that 26% agreed that Facebook is a good way of sharing news of a death beyond the immediate circle of family and friends, with 50% disagreeing.
Only 21% of people agreed that Facebook is the best method of sharing news of a terminal diagnosis beyond close friends and family, with 58% disagreeing.
In both cases, younger people are more likely to be comfortable sharing such news on Facebook.
“This shows how important Facebook is as a tool to remember and mourn the deceased,” said James Norris.
“That so few people would unfriend someone on Facebook after their death gives us a small indication as to the importance Facebook is providing into posterity.”
The Digital Legacy Association is a nationwide organisation that supports the general public and health and social care professionals with digital estate planning, digital legacy and bereavement.
To find out more about The Digital Legacy Association, and to download the new resource, visit the association’s website.
When people think about estate planning, they are typically concerned with the distribution of physical assets at their deaths. However, most people fail to consider (and plan for) their digital assets.
Digital assets are digital property that has to do with our electronic devices, and includes all of the content that we own and have stored electronically In other words, digital assets may include the content in our online bank and credit card accounts; music, movies, pictures and books in electronic devices such as computers, smartphones and tablets, and in our email and social media accounts such as Facebook, Twitter, and Flickr.
Without a plan in place, you risk burying your family in red tape as they try to get access to and deal with your online accounts that may have sentimental, practical or monetary value. If you have an email account, your emails might be deleted before your family has a chance to review them. In other cases, maybe your family gains access to emails that you’d rather they didn’t see. Same goes with the content of a Facebook account.
Additionally, certain industry estimates place the average value of a person’s digital assets at around $30,000. It’s clearly not only an issue of family photos and other sentimental assets. If you have an online-only bank account or a PayPal account (or Bitcoins), your executor may never know about that account if not for your digital estate plan.
But planning for online assets can be complicated: These accounts often are governed by the terms-of-service agreement to which you agreed upon opening the account. Often, service providers have created those agreements to comply with federal laws that limit access to account information to authorized users. Plus, most state laws don’t offer specific support to executors in taking control of digital assets. Next year, Florida is expected to adopt a law that, once enacted, would give estate representatives and trustees easier access to digital assets, making it easier to retrieve a loved one’s stored data.
Sensible Legislation on Digital Assets
This following article titled “In Support of Sensible Legislation on Digital Assets” is featured in the October 2014 issue of the San Fernando Valley Bar Association‘s Valley Lawyer Magazine (view pdf):
For the past ten or so years, new articles have abounded regarding the difﬁculty in accessing the digital records of the dearly departed. Famous examples include:
- Justin Ellsworth, the U.S. Marine who was killed while serving in Fallujah, and his father’s desperate pleas to access his Yahoo account, which were denied.
- Karen Williams, whose 22-year-old son was killed in a motorcycle accident, and her desire to access his Facebook account, which was also refused.
Both parents were faced with bureaucratic roadblocks during a time when emotions were already being pushed to their limits.
The problems associated with digital records are exacerbated by our desire to “go green.” No matter how the picture is painted, it seems as though people of all generations are eschewing traditional paper communications for digital. In fact, many companies are now making email the default method of communication and will charge a fee for communication by mail. While there are many beneﬁts to this method of communication and storage of information, there are just as many pitfalls. Primarily, if you have not provided your next of kin the username and password for each digital account you own, it may be impossible for anyone else to secure access to that account.
Upon your death, someone else will be left in charge of your estate and will have to make sense of your digital assets notwithstanding their grief at your passing. Calls to email service providers will be met with roadblocks since the owner of the account is no longer around. The service provider will consistently reference the end-user license agreement that is between the provider and the owner, citing statements that those agreements are designed to protect the integrity of their accounts and insure privacy. There is nothing that can be done and it may be months, years and potentially never before all of the digital information is recreated.
A person’s digital information is just like any other asset that needs to be administered correctly on incapacitation or death. The time has come where personal representatives, trustees, and agents acting under a power of attorney can access such digital assets with greater ease and less red tape. According to a 2011 Census Bureau report (pdf), more than three-quarters of all Americans owned a computer. That number increased to nearly ninety percent of all Americans with a bachelor’s degree or higher. A quick look around your room will likely produce a computer, a tablet, laptop, cell phone, or perhaps all three. All of those electronic devices likely hold at least one component that can be characterized as a digital asset (e.g., email, pictures, books, apps, etc.). Individually or in combination with traditional assets, those digital assets have the potential to cause a signiﬁcant impact on one’s estate, both in terms of valuation issues and administrative logistical issues.
Delaware has taken the ﬁrst major step forward to address some of those issues. On August 12, 2014, Delaware Governor Jack Markell signed HB 345 into law, more formally known as “The Fiduciary Access to Digital Assets and Digital Accounts Act.” The law, which will go into effect on January 1, 2015, is the ﬁrst comprehensive law that provides access to a person’s digital estate following death. The Act is a legislative response to the fast-growing problem of the inability to retrieve information from email accounts, social media accounts, business records and other digitized accounts following a person’s death.
Some states have started to address these issues. Narrow statutes have been enacted in a handful of states but they only address email accounts not social media or other internet-based accounts and are relatively restrictive, limited to turning over copies of emails, but not providing actual access to the account. In Delaware, however, if a person dies and is a resident of Delaware at the time of death, all companies are obligated to provide the username, login and password information to the estate representative. The company would be able to withhold this information only if they were directed that the account not be accessible in the event of death or incapacity.
The Act provides authority to a decedent’s personal representative, an agent authorized under a power of attorney or a trustee of a trust. The representative would essentially step into the shoes of the deceased or disabled account holder and would have all of the powers, rights and responsibilities the account holder had.
Following proof of death or disability and appropriate appointment of authority, the custodian of the account is obligated to turn over all username, password and any other relevant information necessary to fully access the account. Failure to do so could result in court orders and potential liability for damages to the estate.
California has the opportunity to improve upon the statute already passed in Delaware by addressing some of the shortfalls that Delaware’s HB345 does not address. Legislation is currently pending in California on this issue. On January 9, 2014, Senator Joel Anderson introduced SB 849, proposed legislation in California to address the same subject matter as Delaware’s HB345. The proposed legislation was amended on April 21, 2014 and the ﬁrst hearing on the matter was held on May 6, 2014 with testimony being taken. If passed, the new legislation would expand California Probate Code §9650 to require that electronic communication services or remote computer services provide a decedent’s personal representative access to the decedent’s account.
At ﬁrst blush, this proposed legislation is much more restrictive than the Delaware law, since it may be interpreted to only address email accounts. It is essential that any proposed legislation cover a much more expansive group of digital assets. Email is just the tip of the iceberg.
There are other digital assets, some of which may hold signiﬁcant monetary value, which also must be addressed. For example, self-published authors are using the web and cloud storage as a means by which to create, preserve and distribute their works. California’s legislature should adopt them ore expansive deﬁnition of digital assets as proposed by the Uniform Law Commission: “a record that is electronic,” with record meaning “information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.” This would not only include email, but also encompass a broader spectrum of digital assets.
Secondarily, the proposed California legislation only gives authority to a personal representative appointed by the court, which means that agents acting under a power of attorney or trustees acting outside of the oversight of the Probate Court are not covered. The expansion of the breadth of digital assets covered and the persons entitled to the information following disability or death are crucial for any proposed legislation to adequately address the issues arising from the expanding realm of digital assets. On a positive note, California’s proposed legislation does deal with an issue relating to the disclosure liability of the service providers. The Electronic Communications Privacy Act and the Stored Communications Act regulates the disclosure and transmission of digital assets. While these Acts were initially intended to prevent unauthorized wiretapping or disclosure of information without the user’s consent, it has been interpreted much more broadly, thereby potentially exposing a service provider to liability for disclosure to anyone other than the registered owner.
The proposed California legislation provides indemnity for the service providers who comply with an order to release information to a personal representative. It will remain to be seen if this will provide enough incentive for service providers to comply with the court’s order or whether the federal government will prosecute these types of cases in the ﬁrst instance.
It is hoped that the ultimate law passed in California will be more expansive both in terms of coverage and in authority granted, but still maintain the additional protections of liability indemniﬁcation. What should be clear though is that these new laws are important and are deﬁnitely needed in this technological age. Digital assets are not going away and these laws are designed to make administration of the assets easier. The days of maintaining business records, check registers, bank accounts, photo albums, and other communications through traditional pen and paper are dwindling; computers are becoming our ﬁling cabinets. Storage, back-ups and original works–art, short stories, novels, biographies–are being digitized. Now it is up to us to incorporate those digitized assets into our overall estate plan, addressing both concerns of disability and death.