Tag: estate plan

Digital Files After Death, What Happens to Your Digital Legacy?

Have You Completed Your Client’s Digital Estate Plan?

Eleanore

I’m sure you are comfortable that your clients’ estate plans are up to date. But have you reviewed your client’s digital estate plan? What is a digital estate plan? It’s a plan for the disposition of all your clients internet accounts once he or she is deceased

Experts have estimated that the average adult with access to the internet has more than 25 internet accounts! In the past, we kept albums full of snapshots, vinyl records and shoeboxes full of correspondence. Now our photos are all on Flickr and IPhoto, our music is downloaded from ITunes and our correspondence is email via Yahoo or Google.

And probably more important than that, a lot of your clients bank and investment accounts may be entirely online.!

And what happens if your client dies? Who has access to these internet accounts? And if they want those accounts taken off the internet how do they do it? You may discover that it is more difficult than you think to access their accounts or erase them from the internet

The family of Ricky Rash, a 15 year old who committed suicide in 2011, discovered how difficult it was to recover information from their deceased son’s internet account. In an effort to understand why he had taken his own life, they requested but were refused access to his Facebook account. Facebook claimed that according to the Stored Communications Act of 1986 – the federal law that governs the protection of a person’s electronic data – even the account of a minor is protected from access by his parents or anyone else.  Other sites and providers interpret the legislation this way, making access all but impossible.

There are only five states that have taken any steps to help recover the internet data of a deceased person—Indiana, Idaho and Oklahoma legislation covers social media and blogging accounts, while Connecticut and Rhode Island legislation covers only email.

What does this mean for your clients? It is critical that they create a digital estate plan.The listing of internet accounts needs to be more comprehensive than I originally recommended. Information must include:

  • the name of the account
  • the contents of the account
  • the URL address
  • username
  • password
  • instructions for the disposition of the account including the person to oversee such disposition.
Digital planning
Digital planning

There is a whole new industry that has been created to service your clients’ digital estate , a new digital estate planning service. Your clients can create an account and then enter their user names, passwords and wishes for each of their digital assets. They can specify an heir for each account; Legacy Locker will provide heirs with information after the account holder’s death is verified.

There are also online memorial services to celebrate your client’s life. These services enable your clients to create their own memorials before they pass away. Facebook and Twitter also offer these services for family members.

The importance of having a digital estate plan will increase as more and more of our assets (and access to assets) are online. Gradually laws will evolve to give family members access to deceased loved ones’ accounts. It is important to prepare your clients for the disposition of their digital assets now so that family members will not be unpleasantly surprised when they attempt to uncover them.

If you want to explore digital estate planning in more detail feel free to wander around.

Is AI The Key To Eternal Life?

Texas estate planning should include digital life

Eleanore

In Texas, many people have become aware that they should create an estate plan that deals with the distribution of their assets when they die. In fact, the same people know that common tools in estate planning include a will or trust. However, what they may not know is that the on-line estate of a person is as important as that of the physical estate when working to create a comprehensive plan.

A digital estate includes both traditional assets like money and more emotionally related, sentimental items, like photo storage sites. These can all be dealt with in estate planning documents. For example, Google has a method in which an account owner can set who and how their accounts can be accessed when they die. Other websites have similar options available.

Important for those left behind is the information as to what on-line accounts exist. This can be included in estate planning documents. The details about the accounts should be updated regularly as people add accounts and information to the web. In addition, passwords should be kept separately, and out of the estate planning materials that can become public at the time of death and probate.

Estate planning may seem overwhelming to some in Texas. This is because of the difficulty in ensuring that all assets have been accounted for and that the plan that they create is complete. To be sure that this is the case, it may be helpful for an individual to review all available options and seek advice from those with experience in estate planning.

The importance of digital asset planning explained

Digital estate planning

Eleanore

“Privacy is not something that I’m merely entitled to, it’s an absolute prerequisite.” — Marlon Brando

Bricks and mortar businesses are inexorably coming to the realisation that a substantial amount of their business value is intangibly trapped in information. For online businesses, practically 100% of their assets are made up of information and the most valuable of all happens to be related to individuals. Information such as visitor, member, and client contact details are eagerly captured by online companies. The deeper and more detailed it gets, the better it is for the online enterprise. The ability to create an accurate client profile is true power and online businesses know it. They fight tooth and nail to attract new members, sign up subscribers and remain in front of as many contacts as possible. Individuals’ contact information and whatever other identity-related data they can cram into their customer databases is precious and allows them to put a value on their company, even if that value is largely theoretical.

If companies go through all this trouble to get data, would it not follow that their executives would rather part with their coveted reserved parking spots before they  consider allowing a single, hard-earned entry to be removed from their customer relationship management database? Absolutely! As long as the online businesses we deal with are subject to a privacy law based on the OECD data protection principles, we can count on the fact that limited retention is legislated and should expect our data to be purged from their systems after a ‘reasonable period of time’. What we should concern ourselves with is keeping track of all the data that is out there in detailed online and offline profiles. Social networking sites, email systems, other data sharing systems, e-commerce marketplaces and online auctions all try to build detailed profiles to allow for customisation of marketing messages, the likes of which deliver real value to online advertisers.

With the near complete penetration of the Internet across all age groups, we are increasingly likely to hear the term ‘digital estate planning’ (DEP) from tech-savvy lawyers. A search for this term yields a mere 70 hits on Google at the time of this writing, but give it a try in a year or two, and it be entrenched in the legal vernacular.

With our information now spread across dozens, perhaps hundreds of Internet sites and corresponding numbers of back-end databases, DEP is easier said than done. Social networking sites such as Facebook likely consider their early policy of ‘no deletion, only deactivation’ to have been a key driver of explosive growth as their user base shot past 100 million. Other sites that may have been more ethically inclined did not have the same opportunity to rekindle relationships with returning users. With global pressure to adopt data protection best practices, more and more firms are finding that they need to offer options for purging individual information from their systems.

The potentially vast amounts of information about deceased, Internet-active individuals may well turn into an insurmountable task for many, or an expensive task for a legal professional who wants to delve into DEP provisioning. Sites such as Hotmail, Yahoo! and Google all allow next-of-kin access to the deceased party’s information upon presentation of proof of death and proof of relationship, but a process needs to exist to manage all such related activities. Such a process can be based on a solid foundation of privacy legislation but, from the subject’s perspective, it must be consistent with existing best practices for password management and profile maintenance.

It is important to remember that information represents the building blocks of our identity and beyond the proper disposal of our data-based estate resides the very real threat of identity theft. That threat is real and has been for years. Husnain Kazmi is Vice President for Bank of America in Southern California. Kazmi says that in 2004 alone, some 400,000 checking accounts were reportedly opened in the US and millions of dollars in car loans were approved in the names of deceased individuals. This particularly effective type of identity theft is called ‘ghosting’ and most often occurs as a result of orphaned data being harvested by IT-savvy criminals looking to profit.

Governments need to step in and proactively install legislation that will protect citizens. Provinces in Canada, for example, are taking steps to establish privacy legislation around medical records. Many in the health care system view the legislation as crucial to the successful implementation of the Pan-Canadian Electronic Health Record (EHR) system under development across the country.

Following best practices is vital, but not enough. While the discussion is rather morbid, we must encourage clients and loved ones to exercise common sense when writing obituaries and safeguarding death certificates. Donald Kerr, Deputy Director of National Intelligence in America, is quoted as stating the following on the Office of the Director of Naval Intelligence website, “Too often, privacy has been equated with anonymity; and it is an idea that is deeply rooted in American culture… but in our interconnected and wireless world, anonymity – or the appearance of anonymity – is quickly becoming a thing of the past… we need to move beyond the construct that equates anonymity with privacy and focus more on how we can protect essential privacy in this interconnected environment. Protecting anonymity isn’t a fight that can be won. Anyone that’s typed in their name on Google understands that.”

We may all soon be in need of an internet-savvy, privacy aware, digital estate planner.

Identity Theft Safeguard

Do You and Your Aging Parents Have a Digital Estate Plan?

Eleanore

You may be comfortable that your have your estate plan in order. You have a will, a durable power of attorney, a living will and a health care proxy. But do you have a digital estate plan?

In the past, we kept albums full of snapshots, vinyl records and shoeboxes full of correspondence. Now our photos are all on Flickr and IPhoto, our music is downloaded from ITunes and our correspondence is email via Yahoo or Google. Naomi Cahn, a law professor at George Washington University, stated that most adults have 20-25 accounts on the internet. And many of those accounts are for banking or investments.

Have you given instructions to your family on what to do with your internet accounts if you should die? And do they even know how to access those accounts? User names, passwords, internet addresses?

The family of Ricky Rash, a 15 year old who committed suicide in 2011, discovered how difficult it was to recover information from their deceased son’s internet account. In an effort to understand why he had taken his own life, they requested but were refused access to his Facebook account.

Facebook claimed that according to the Stored Communications Act of 1986 – the federal law that governs the protection of a person’s electronic data – even the account of a minor is protected from access by his parents or anyone else.  Other sites and providers interpret the legislation this way, making access all but impossible.

There are only five states that have taken any steps to help recover the internet data of a deceased person—Indiana, Idaho and Oklahoma legislation covers social media and blogging accounts, while Connecticut and Rhode Island legislation covers only email.

What does this mean for you? It is critical that you create a digital estate plan. The listing of internet accounts needs to be comprehensive. Information must include:

  • the name of the account
  • the contents of the account
  • the URL address
  • username
  • password
  • instructions for the disposition of the account including the person to oversee such disposition.

Don't Let Your Digital Assets Die With You

Digital Estate Planning Law

Eleanore

The May 2013 issue of the Internet Law Researcher newsletter (which is available to members of the Duke Law community through Westlaw‘s GLILR database) rounds up a bibliography of legislation and articles related to digital asset estate planning. To locate the article in Westlaw Classic or WestlawNext, use the citation 18 No. 5 Internet L. Researcher 1.

Planning for death has always been an uncomfortable and difficult topic for most people, and the growth of social media and other online accounts has added a new layer of complexity to sorting out the affairs of the recently deceased. Author Ken Kozlowski describes the current situation as “a big mess” in which “the federal Stored Communications Act (SCA) [is] being cited as a reason for services such as Facebook to withhold access to deceased individuals’ accounts, passwords, stored photos, etc.” Five states have passed legislation related to control of deceased individuals’ online accounts, and undoubtedly more state legislatures will follow suit.

The Internet Law Researcher article recommends a number of publications from legal and mainstream sources, including the recent law review student note by Maria Perrone, What Happens When We Die: Estate Planning of Digital Assets, and the blog Digital Passing. The recommended resources offer tips for developing a plan to handle digital assets after death, and serve as a good supplement to the Goodson Law Library’s collection of estate planning guides, most of which do not discuss digital assets in detail.