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Do You Need a Digital Estate Plan?

Will your estate executor have access to your digital estate? Do you know what is involved in a digital estate plan? It’s more than signing your paper will.

Is it enough to leave your email password on a notepad beside your computer?

Sorry, no. You need to learn more digital dos and don’ts.

Digital assets are various online or electronic files with your personal information. They include financial resources and social networks. Digital assets can include personal data with high emotional value. You could also have digital business property with monetary value. Digital assets can be stored electronically, online, in the cloud or on physical devices.

Passwords Can Control Access

Access to your online information or electronic storage is vital. Who should have access to your passwords?

When you make a will, you can appoint a digital executor. You can authorize your executor to hire experts to handle digital assets. You must, however, share passwords and login information to manage such assets.

Executors face a dilemma; in some cases, you may not have ownership of some digital property. Instead, only a non-transferrable access license may exist. Social media user agreements may only permit network access with a personal password. There is nothing to own or sell.

But executors have a duty to collect estate assets. Will they have to hunt for your passwords and usernames?

What about your material in the cloud, on social media or video sites? You can create a digital estate plan and specify your preferences. How is your executor to handle your digital accounts? Should files be closed, maintained or memorialized?

Secure Devices

Estate trustees must be aware of their duties to secure devices with digital information. This includes cell phones, tablets, laptops and computers.

Documents, photos, videos, text messages can be personal or business materials. Executors may not be able to distinguish between these.

Digital assets may have emotional and personal connections for your survivors. This may not translate to monetary value to calculate probate or income tax. However, the loss or expiry of a business domain name or blog can affect online sales and value.

Customer subscription lists and shopping carts can be stored online for businesses. Trademarks, copyrights and creative work can be considered assets and intellectual property. What about the value of an unpublished manuscript or musical composition?

Your online financial accounts may automatically pay utilities, credit card bills, income taxes or loan payments. Your digital estate property can include:

  • blogs
  • domain names
  • online photos and music
  • memorial websites
  • shopping networks
  • loyalty and reward programs

Credit card agreements may impose deadlines for the transfer of rewards or membership points.

Do Not Store Passwords in Wills

You need to store your digital information somewhere other than your will.

Once probated, your will and any password information become public. This could lead to fraud, cybercrime and identity theft.

Many online services store passwords and access codes. These may promise confidentiality. Their guarantees may be short-lived when such businesses fail. Also, digital laws will likely change and courts can order disclosure of such records.

Executors must be aware that online fees can continue to be charged and go undetected. Credit card payments or debt service accounts may have been set up for automatic payments. Without paper statements, executors may be unable to track them.

Digital worlds often have no paper trail to follow. User agreements may prohibit the transfer of passwords and access to anyone other than the registered user.

Can your executor answer your secret questions?

When asked, “What is your favourite bar beverage?” my answer is, “who’s buying?”

Funerals and Instagram: A look at the funeral hashtags

Why Executors Worry about…Digital Assets

Do you know what digital estate assets are?

As an estate trustee, you have to secure estate property. This can include protecting valuable digital property.

Here are some digital estate dos and don’ts for executors.

Electronic or digital information can be a digital asset. It can be stored in various electronic devices such as hard drives, computers, tablets and cellphones. Information can be stored in memory devices, networks, online or in the cloud.

As an executor, you are required to collect estate assets. You will need to include devices with digital or electronic information.

Digital assets may have value. This can include:

  • emotional (family photos, videos, music)
  • financial (business websites, domains, blogs)
  • creative (copyrights, unpublished manuscripts, musical compositions)

It may be difficult to distinguish what is valuable.

How Do Executors Get Access Get a head start with a list of a person’s usual websites, user names and passwords. This assumes the person who asked you to be executor can prepare a list.

You may need to hire a tech wizard to gain access to the deceased’s digital world.

Social media sites may be controlled by user agreements. These may dictate that a user has no property rights. The user only has a license and access to the network. The user agreement may also specify that a password is non-transferable.

The legal situation is not clear for executors. Most social media sites rely on their user agreement. These prohibit access and can deny estate trustees the right to deal with content.

Digital asset legislation, if it exists, varies by jurisdiction. Some areas have statutory rules. As yet, no uniform laws exist to create a code of conduct.

Executors have little guidance from court decisions. Few cases have ended up in court over digital property.

A clear understanding of your executor’s rights and responsibilities may not be possible.

You, as executor, may not know how to deal with digital accounts. You may not be able to identify what electronic files should be closed or maintained.

You must, however, take control of online financial information.

Online identity theft is common but difficult to detect.

Executors may not find paper bank or credit card statements. Utility accounts may be preauthorized and paid from electronic accounts.

Be aware that you may need to stop or close online bank, credit card or e-trading accounts. These personal financial resources need to be protected.

Even emails and voicemails may need to be examined. These may require access usernames and passwords.

Reward and loyalty programs for airline, shopping and membership rewards may exist. These may be non-transferable or transferable within a limited time, subject to specific conditions.

Common Questions without Answers

How should executors deal with online photos, videos and materials? Should they make copies of online materials?

Should domain registrations, website and blogs be preserved?

Will the business website need to be maintained?

What about membership and online subscription lists?

I welcome your thoughts on the best way for executors to deal with digital assets.

Google Searching for Answers to Digital Legacy Problems

The digital legacy that a deceased person leaves behind has been a much-talked-about subject in the estates world in recent years.  See, for example, blogs on the subject by Moira VisoiuSaman Jaffery or Nadia Harasymowycz.  There’s a March Hull on Estates podcast about this, and another from July 2011.

While there have been some legislative and judicial developments in some jurisdictions (see Nebraska’s Bill 783 for an example), it has largely been left to private industry to resolve the problems created when a person passes away leaving a large digital footprint behind.

Fortunately, Google has stepped up to the plate and introduced a new policy to resolve this issue with respect to its services.  Google’s new Inactive Account Manager feature takes leaps forward towards resolving digital legacy issues.

Called a “digital will” by some media sources including the Toronto Star, the Inactive Account Manager allows users to manage what happens to their Google-related digital assets on death, or on prolonged account inactivity.  Users may set a period of time of inactivity (three, six, nine, or twelve months), after which Google will delete their data.  Before anything is deleted, Google will notify you by email or by text message to your cell phone.  If users would prefer that their data be preserved, there is an option to have some or all of it sent to trusted contacts.  The services to which the service applies include +1s, Blogger, Contacts and Circles, Drive, Gmail, Google+ Profiles, Pages and Streams, Picasa Web Albums, Google Voice, and Youtube.

This service is a clever and easy to use way to manage digital assets.  It does raise a number of questions, however.  How does this policy interact with legislation and case law about digital assets in jurisdictions that have these policies?  Will Facebook, or other online services follow suit and prepare similar policies?  Does an estate trustee under a will in Ontario have the authority (or the responsibility) to collect your digital assets from the person named on your Inactive Account Manager?

Perhaps the answers to these questions will become clear with time.  In the interim, it appears that we are left with a patchwork of policies created by different online service providers with different intentions and different philosophies.  Consider, for example, _LIVESON, a service that analyzes a user’s Twitter habits and generates automated tweets for him or her after death.  Control is placed in the hands of an “executor” who manages your _LIVESON “will”.  Although somewhat eerie, this is an interesting way to ensure that a person’s online presence not only persists after death, but continues to develop and grow.

If you are a Google user, it may be worth checking out the Inactive Account Manager and configuring your settings.  The photos, blogs, friends and videos left behind on a user’s death may mean a lot to grieving loved ones.

When updating an estate plan, digital assets are an important aspect to consider.  Lawyers should be cognizant of the issues surrounding digital legacies, and should discuss them with their clients.  People planning their wills should think about the intangibles they leave behind as well.  And if you aren’t sure where to find this information, try Google.