Lost on the internet: why online banking has put our inheritance at risk

Lost on the internet: why online banking has put our inheritance at risk

Lost on the internet: why online banking has put our inheritance at risk

Click here to view original web page at Lost on the internet: why online banking has put our inheritance at risk

Lawyers are warning our money could be lost forever because of family secrecy and outdated laws.

Lesley Davis is a modern-day treasure hunter.

That’s not her job title, of course: on paper, she’s a partner at law firm Shakespeare Martineau in Birmingham.

Davis is a specialist in wills and succession and is tasked with hunting down the property of the dead, to pass onto their descendants and relatives.

A couple of years ago, she encountered an unusual case.

When searching for the assets of a recently deceased man, Davis was tipped off by the deceased’s friends that he had an online gambling account he hadn’t disclosed to his wife.

There was money in the account, but, Davis explains, the man’s relatives ran into a serious problem.

“When you tick the terms and conditions on any of these sites – I’m convinced most of us don’t read them properly – it means if you have a balance and you don’t claim it within a certain period of time, they take it back.”

As the account hadn’t been mentioned in the will, and there were no physical documents to show it existed, Davis wasn’t made aware of it until several months had passed.

By that point, the time limit had passed and the gambling company legally reclaimed the money, she recalls.

“That was worth tens of thousands of pounds.”

You can find our full guide to passing on wealth here

£850 million collecting dust

Few of us have online gambling accounts, but almost all of us have bank accounts.

There’s £850 million lying unclaimed in lost bank accounts, the Money Advice Service estimates, so much so that the Government took out £330 million last year to spend on good causes.

The amount of unclaimed money about to spiral is in part due to missing ‘digital legacies’ that Davis says makes it harder for lawyers like her to find out what recently deceased people owned.

“I qualified in this area in 1991, when everything you put down on pen and paper was it: you’d write a will and everything in your will was all the assets in the estate.”

In the past, a dusty box in the attic could reveal a treasure trove of cash, bank account statements and share certificates.

Wealth in the attic (image: Shutterstock)

Today, it’s possible to do all your banking and investing online and have almost no physical documents to show for it. That’s before you start to consider cryptocurrency wallets, gambling accounts and music collections.

The chances of relatives or lawyers bumping into these assets are close to nought, Davis warns.

“If you die and you didn’t physically identify an asset, how do you know your loved one will receive it?”

Why I’d be glad if I never received a paper bill again

Damned if you do

Many of us use online banking because it’s convenient: you simply log on to your computer.

You could give your lawyer your password, but although they’re bound by confidentiality, you could still be breaking your bank’s rules.

“It’s a nightmare”, says Davis. “As lawyers we’ve got to be very careful because we’ve got GDPR to think about; we can’t keep data on individuals beyond a certain length of time.

“They [the clients] shouldn’t be giving their passwords or PIN to anyone, but if they don’t, how do you pass on those assets, after they die, to the person who should have them?”

The 1990 Computer Misuse Act makes it illegal to access someone else’s digital information – even after death – unless you’ve been given permission in advance.

You shouldn't give anyone else your password (image: Shutterstock)

The problem, explains Davis, is that “it’s very difficult to get authority or consent from someone who’s dead. It has to be an understanding that’s given in advance. The problem of giving consent in advance is whether it has a shelf life.”

A future falling out or divorce could make you bitterly regret giving someone your bank details.

Davis also warns that a lack of paper records could put the executors of wills at serious risk as they will be liable for any debts not paid, even if they aren’t aware those debts existed.

“Executors are left in a terrible position and fewer and fewer people will be willing to act as executors. It’s a thankless task.”

Read our guide on how to be an executor here

Death Notification Service

In response to our increasingly paperless lives, last year a group of banks launched the Death Notification Service.

Like the Government’s Tell Us Once service, which notifies different departments such as HMRC and local councils of a death, the Death Notification Service saves you calling around various banks.

Instead, you enter their name, date of birth and death, address and Death Certificate number on the website and the banks will contact you within 10 days to confirm if the deceased had an account with them.

The service should not, however, be considered a cure-all.

“We constantly see things that haven’t been put on the Death Notification Service”, warns Davis.

Only a handful of firms are signed up to the service, most of which are high street banks and only one investment firm, Scottish Widows.

For other institutions, the executor will need to contact them directly.

Just having the Death Certificate isn’t enough; it’s seen as too easy to get, so you’ll need evidence that you’re the appointed executor of the will.

What to do when a family member dies: taxes, probate and inheritance explained

Going back to basics

“The law is very much playing catch-up”, Davis admits.

Laws around inheritance are being looked at, she says, but will likely require major court cases involving hidden wealth or debts to move legislation forward.

In the meantime, she and her clients are going ‘back to basics’.

That means printing off documents relating to all your assets and putting them in a locked drawer in your study, together with passwords that your family could work out, such as a birthday.

Print off your financial documents (image: Shutterstock)

If you change accounts or passwords, you’ll need to add sticky notes and regularly provide written permission to trusted people to access your accounts in the event of your death.

Unfortunately, the situation could get harder before it gets easier.

Faced with rampant fraud, financial firms encourage customers to change passwords regularly and sometimes ask they are backed up by security questions, fingerprints or even voice recognition software.

To make matters worse, your life savings could soon be hidden within your phone.

App-only bank Monzo has 1.78 million customers with recent figures showing thousands more switching, whilst Atom Bank and Tandem Bank are attracting long-term savers.

Monzo is not currently a member of the Death Notification Service. Smaller app-based banks or investment platforms, which are often just start-ups with a couple of employees, could be difficult to track down or deal with.

That’s why, until notification services cover all financial companies, it’s vital you keep paper records of your own digital legacy, Davis advises.

“You might have wanted to pass it onto your children to pay for university or to buy a house; that’s money you’ve worked hard to collect.

“If it’s not identified it just sits there.”

Putting your affairs in order: wills, power of attorney and paperwork explained

How to protect your digital legacy

We talked to Lesley Davis from Shakespeare Martineau and Sarah Coles from investment platform Hargreaves Lansdown on the best ways to protect your digital legacy.

Make a will

55% of us don’t even have a will, let alone information about where to find our assets.

If you’re over 55 it’s possible to get a will draw up for free by a solicitor, in return for charitable donations.

As Davis explains, you should take care with the wording: leaving a beneficiary your Barclays account won’t work if you later switched to Santander.

Hargreaves Lansdown’s Coles suggests you should also draw up an assets register and keep this in hardcopy with your will.

Set an annual calendar reminder

You can check if any passwords have changed or new accounts have been set up and update your hard copy records accordingly.

Consolidate accounts

According to Coles, consolidating accounts can “not just to make life simpler after your death, but make things easier for yourself now.”

It’s also an opportunity to ditch uncompetitive accounts and you can involve your family in the process.

Joint account

If you have a joint bank account, your partner will be able to pay bills and access money straight away, says Davis.

There can be serious downsides to joint accounts so you should think carefully before setting one up.

Power of Attorney

You could give someone Power of Attorney so they can access your online accounts before you die.

However, banks are unlikely to work with them until you have already lost capacity, warns Davis.

“They fight against it, understandably: they don’t want people rocking up with other people’s passwords.”

Useful websites

Death Notification Service – free service to inform member banks of a death and identify an individual’s accounts.

MyLostAccount – free service to find money with bank accounts, building societies and NS&I.

National Will Register – paid-for service that can search for wills.

Pension Tracing Service – a Government service to find unclaimed pensions.

Tell Us Once – a Government service to contact departments including HMRC, Department for Work and Pensions, DVLA and the local council.

What happens to our data when we die? Elaine Kasket on a digital dilemma

What happens to our data when we die? Elaine Kasket on a digital dilemma

What happens to our data when we die? Elaine Kasket on a digital dilemma

Click here to view original web page at What happens to our data when we die? Elaine Kasket on a digital dilemma

Elaine Kasket.
‘Under contract law, privacy ceases on the point of death’: Elaine Kasket. Photograph: Antonio Olmos/The Observer

Elaine Kasket is a counselling psychologist based in London. Her first book, All the Ghosts in the Machine: Illusions of Immortality in the Digital Age, examines the ethical and technical issues surrounding our data when we die.

If I were to fall under a bus tomorrow, what would happen to my Gmail and Facebook accounts?
Under contract law, privacy ceases on the point of death. But what’s interesting about this area is that big tech treats the erstwhile account holder and their data almost with the same contractual reverence as they would when this person was alive. So they end up privileging that concept over the needs, requests and wishes of the next of kin.

But that’s not what relatives expect; they would assume to inherit data much like they would shoeboxes of letters, photographs and so on.
Exactly. In the UK laws of succession, the two tests are tangibility and value. So if something’s tangible, even if it has no value, you can execute it in a will. Or it will automatically pass to the next of kin if the estate goes to them. So people assume the digital stuff is going to obey the same rules, but it doesn’t.

Generally speaking, what’s the social media company response to relatives’ requests for access to their deceased’s accounts?
Something along the lines of: “We’d love to be able to help you with this but we’re not able to.” They say they are protecting the (technically nonexistent) right of privacy of the deceased. You could call it agency laundering.

Occasionally this attitude has been challenged in court…
One of the most ridiculous cases was where Hollie Gazzard was murdered by an ex-boyfriend. Her Facebook account contained photographs of her with her killer. Facebook told the family that they needed to protect Holly’s privacy by not allowing them to selectively edit her profile.

Hasn’t Facebook recently tried to address some of these problems?
Earlier this month it announced it will be using artificial intelligence to stop profiles from sending out troubling things such as birthday reminders and so on. But for every person who’s upset by a reminder there could be another family member who would mourn their loss. Because the thing is, grief is idiosyncratic. There is no rule book for grief. And if there were one, a profit-driven company, such as Facebook, shouldn’t be writing it.

Facebook’s business model is to collect data to encourage people to buy things. Dead people aren’t consumers. What’s the business case for maintaining memorial accounts?
There are several things. The only reason some people stay on Facebook is that there are memorials for people who are dear to them. And once you deactivate your account, the deceased user is no longer able to re-add you – you are locked out of the cemetery.
Another reason is that even if the person is no longer available to buy something, their data can still be analysed and be valuable to a company for a number of purposes.
They used to cull the accounts of deceased users, but there was user backlash from that. Ultimately, automatic profile retention is the least resource-heavy thing to do.

At some point there will be more dead Facebook accounts than live ones.
The Oxford Internet Institute recently predicted there could be 2bn dead Facebook accounts by the end of the century.

That’s a lot of data…
Although we’re doubling what we can store every couple of years, it’s not, like infinite – and our devices capture more and more stuff by default. That surplus data, either with the aid of artificial intelligence or human decision making will be jettisoned, and big tech will be making those decisions.

Meanwhile, people have to act like hackers to gain access to their relatives’ accounts
They are forced to break the law. They are impersonating people, using other people’s passwords… but we let it slide, because what else can you do? I’m not sure if I’m happy to leave someone a set of my passwords; they might find things that were important, but they would have access to everything else. Even if one isn’t harbouring toxic secrets, that’s still quite a thing.

Belief in the afterlife is strengthened by the sense that the dead are remaining socially influential via the internet.

Like people, social networking sites, such as MySpace or Friendster, also die…
The Marie Kondo idea that you should be storing all your books, photographs and music in the cloud, so we have nice clean shelves, is great. But just be aware that your grandchildren might know nothing about you – unless someone is taking the time to think: that platform is becoming obsolete, let’s make sure we download an archive. Companies aren’t going to do this for you; they’re not humanitarians, they are profit-based companies. Look at the history of computing: coding changes, hardware changes, software changes. Your data won’t survive. Moreover, you can’t bequeath your collections of music or books – all you’ve done is purchased a user licence agreement limited by your lifespan. The music isn’t yours; what you have is permission to listen.

Have social media changed how we mourn?
It makes the deceased much more present. The industrial revolution, with its hospitals and suburban cemeteries, enabled us to keep death at arm’s length. But the internet is tailor-made for continuing bonds; it makes it exceptionally easy, because the dead live in tech already. There’s dead people’s data everywhere: their Amazon reviews, their Trip Advisor recommendations. You may encounter something that influences you and have no idea whether it is authored by a dead or a live person. The dead remain socially active in a way that is unprecedented. They are undifferentiated, ambiguously there.

You write about people who leave messages on memorial pages who often talk about “getting through” to the deceased…
The sociologist Tony Walter describes how the internet is a particularly amenable place for angels. Historically, angels were messengers between heaven and Earth, but now they inhabit the ether where we can readily access them. Lots of nonreligious people have a belief in the afterlife, and this is strengthened by the sense that the dead are remaining socially influential via the internet.

An idea explored by Black Mirror and others is that we could one day be able to upload the contents of our brain or our consciousness to the cloud and create a hologram or virtual version of ourselves, which people could continue to interact with. Is this wise?
I find it faintly narcissistic. These people are dealing with their own terror of not being alive. They assume people would still like to hear from them when they are dead! Moreover, you may well run into some of the same problems of digital legacy: the platforms need updating, the code ceases to work, and so on.

What’s the bare minimum you’d advise people to do?
It’s a good idea to clean your digital house frequently. If nothing else, you don’t want relatives buried under a hundredweight of undifferentiated data with no sense of what is important to you. The default is to become a digital extreme hoarder, with data up to the rafters. The things which are really important to you, the artefacts you want to pass on to future generations, put them in a physical form. You cannot trust corporations to safeguard your data.

 All the Ghosts in the Machine: Illusions of Immortality in the Digital Age is published by Little, Brown (£14.99). To order a copy go to guardianbookshop.com or call 0330 333 6846. Free UK p&p over £15, online orders only. Phone orders min p&p of £1.99

How German ruling on post-death digital rights can be a real-life lesson for India

How German ruling on post-death digital rights can be a real-life lesson for India

How German ruling on post-death digital rights can be a real-life lesson for India

Click here to view original web page at How German ruling on post-death digital rights can be a real-life lesson for India

old-elderly-ThinkstockPhotos-579410614
Respresentative Image

NEW DELHI: In a landmark ruling when it comes to post-death digital rights, Germany’s highest court has told Facebook to grant a grieving mother access to her late daughter’s account.

Citing data protection laws, Facebook had earlier refused to allow the woman access to the profile of her 15-year-old daughter who was killed by an underground train in Berlin in 2012.

Judges at the Federal Constitutional Court in Karlsruhe in southwest Germany ruled on July 12 that “parents can inherit the contract between their child and a social media platform in the same way they would be able to inherit physical documents such as diaries and private letters”.

“From an inheritance law view, there is no reason to treat digital content differently,” the ruling said.

There are over two billion people on Facebook, 1.5 billion on WhatsApp, one billion on Instagram and 330 million on Twitter — out of which millions are from India.

laptop1_ThinkstockPhotos

There is no denying the fact that most of us spend a sizable amount of time on digital platforms and few of us actually think what will happen to our digital possessions once we die.

The latest ruling has reignited the debate on how to make digital platforms realise the need to transfer digital assets — personal photos, family videos and friendly posts — to the family once a member is no more.

“When someone dies leaving behind his email and social media accounts, the same are movable property and that being so, any heirs of the concerned person can seek right to access the same,” says Pavan Duggal, one of the nation’s top cyber law experts.

A “digital heir” can preserve those precious moments and gift those to future generations via tools such as an external hard disk, Cloud storage, pen drive or DVDs.

The said heirs can ask the digital/social media companies to get access after giving the necessary proof.

social media facebook insta
social media facebook insta

“Invariably, the service provider may not be inclined to give such access without any requisite order from the court of competent jurisdiction. This could mean getting a succession certificate from a court of competent jurisdiction which could be a time-consuming process,” Duggal told IANS.

The German ruling has done justice to a grieving women but the Indian cyber law has not even touched upon — let alone dwelt on the nuances of — the issue of one’s digital life post-death.

“It is pertinent to note that India does not have a dedicated law on digital inheritance, which is indeed unfortunate, given the rapid adoption of and reliance on the digital data by Indians,” Duggal lamented.

Facebook and WhatsApp each has over 200 million Indian users. The photo-sharing app Instagram, according to www.statista.com , has nearly 60 million users in India (as of April 2018).

Social-Media-

According to statistician Hachem Sadikki from the University of Massachusetts, Facebook will become the world’s biggest virtual graveyard by the end of this century as there will be more profiles of dead people than of living users.

The social media giants, however, have formulated their own solutions to the problem.

Facebook “memorialises” your account and allows you to choose a “legacy contact”. No one can log into a “memorialised” account.

The “legacy contact” can “manage” your account by adding a pinned post (like a funeral announcement), respond to new friend requests and change the profile picture and cover photo — but nothing beyond that.

social-media-tools

Google, which owns Gmail, YouTube and Picasa web albums, has an “Inactive Account Manager” feature which allows a user to nominate who has access to his or her information. If people don’t log on after a while, their accounts can be deleted or shared with a designated person.

According to Twitter, “In the event of the death of a Twitter user, we can work with a person authorised to act on behalf of the estate or with a verified immediate family member of the deceased to have an account deactivated.”

The micro-blogging site, however, says that “we are unable to provide account access to anyone regardless of his or her relationship to the deceased.”

From the security point of view, one has to safeguard digital impressions in case of death so that they are not used for anti-social purposes.

“Digital signatures/impressions generally have a validity/expiry date which require a yearly renewal and they are also equipped with a unique combination of passkey so even if someone has the digital signatures they must know the access key to use that,” noted social media analyst Anoop Mishra.

laptop_ThinkstockPhotos

The law, however, is silent on this not just in India but in other countries too.

Several US states have been debating for years the question of whether families can access someone else’s digital assets after they die.

“The law has to intrinsically recognise that digital data and information, as also aspects pertaining to digital life, are integral components of our life and the law must provide for seamless inheritance of digital data,” Duggal noted.

According to the experts, rather than being allowing the accounts of digital users to lapse, it is imperative that the rights to the digital assets of the dead person be adequately recognised and granted to the relatives of the dead person.

The German ruling has opened a window for other countries to take cognizance and formulate laws that cater to digital inheritance.

A turning point in digital immortality

A turning point in digital immortality

A couple of recent cases suggest that we could be on the cusp of intestacy and privacy laws stepping in to help assert control over your digital footprint after death, writes Amy Bradbury

In the UK there is no specific legal framework for dealing with digital assets on death and, given we usually don’t own social media profiles (all we have is a licence to use the platform in question), it tends to be the website’s own terms which govern the position.

Some sites have policies in place for when a user dies. Twitter will work with a person authorised to act on behalf of the Estate or with a verified immediate family member of the deceased to have an account deactivated, and both Facebook and Instagram will ‘memorialise’ accounts. Facebook also allows a user to either appoint a ‘legacy contact’ to look after a memorialised account or have the account permanently deleted. However, it remains extremely difficult to get permission to log in to the deceased’s account, see messages or remove or change posts.

This was highlighted by a recent German case. It has been widely reported that Germany’s highest court has ruled that heirs in Germany have the right to access the Facebook accounts of their deceased relatives as a social media contract can be inherited in the same way as documents such as letters. The decision comes after a long battle by the parents of a 15 year old girl to access her profile, including posts and private messages, to try to find clues about whether her death was an accident or suicide. Despite having the account password, Facebook had refused access citing data protection laws and the privacy of third parties. Hailed as a landmark decision, the judgment purportedly sets aside these concerns and takes a step towards putting digital assets on the same footing as physical assets in Germany.

Separately, in the case of Sabados v Facebook Ireland Ltd the English Court required Facebook to hand over certain information to a bereaved partner. Ms Sabados brought an application against Facebook following the deletion of her deceased’s partner’s account at the request of an unknown individual. The judge ruled that Facebook had to provide details of who made the deletion request which, at the time, was unbeknown to the deceased’s family and friends. The application was brought prior to proceedings. Although currently somewhat unclear, it appears Ms Sabados may wish to assert claims relating to misuse of private information at a later date.

In this vein, a recent claim against The Sun has highlighted that publishers may now more readily accept that privacy rights subsist after death. An invasion of privacy claim was issued following the publication of topless photos of a woman in a revenge porn case. The case was settled without admission of liability but the recognition that a privacy claim can be brought after death is significant.

These cases highlight some of the knotty issues and the need for the Courts to step in. At a legislative and regulatory level, little attention has been given to what happens to data and privacy rights on death. Indeed, whilst the introduction of the General Data Protection Regulation (GDPR) in May has signified the increased importance of protecting the data of the living, it does not apply to the deceased.

There has been call for change. For example, the Information Law and Policy Centre, a research centre within the Institute for Advanced Legal Studies at the University of London has specifically identified the issue in its response to the House of Lords Select Committee on Communications’ call for evidence in its consultation on ‘The Internet: To Regulate or Not to Regulate’.

In the meantime, individuals would be wise to take certain practical steps to protect their digital legacy on death by: creating an inventory of digital assets; keeping passwords in a password manager or digital inheritance account; appointing someone to deal with digital assets on death and ensuring that social media account settings have been amended to in accordance with an individual’s wishes where options for memorialisation are available.

Amy Bradbury is a reputation protection senior associate at Harbottle & Lewis

How to settle your loved one’s digital estate

Giving up the ghost online and what it means to you

A GHOST tour in Edinburgh was where I first discovered the morbid truth about why Victorian headstones often had bells attached.

Buried by mistake? Ring urgently for service.

We’ve come a long way since then, and thanks to modern medicine can be certain when someone’s been ‘called home’ before doing the needful.

If you’re squirming a bit in your seat at the thought, it’s natural. The D word is nobody’s favourite and talking about it is the biggest slap in the face to any healthy dose of self-denial about what’s at the ‘end of the line’.

Anyway, let’s say you are doing a bit of planning and you’ve sorted out what to wear, who to invite and all that, then as a child of the Digital Age you must also put on your ‘to do’ list who can access your social media accounts and other digital assets when you’re gone.

Apparently it’s a bit of a grey area in legal circles and they want to do something about it.

At the helm is the NSW Law Reform Commission which his reviewing laws affecting life beyond your digital death.

Initially they’ve called for submissions from the legal profession and later in the year the public can throw in their two cents worth (and for those born after 1992, when the two-cent coin was demonetised, it means your opinion).

When making the review public, Attorney General Mark Speakman said: “In today’s hyper-connected world, an unprecedented amount of work and socialising occurs online, yet few of us consider what happens to our digital assets once we’re gone or are no longer able to make decisions.

“This is leading to confusion and complexity as family, friends and lawyers are left to untangle digital asset ownership issues, applying laws that were developed long before the arrival of email, blogs, social media and cryptocurrency.”

What the LRC is more worried about is who can access your digital stuff, but although it’s inappropriate to laugh at a time like this, this quote from Speakman was just a little bit ironic.

He said: “When a loved one passes away, bureaucratic hurdles and legal uncertainty are the last thing families and friends feel like confronting, so we need clear and fair laws to deal with these 21st Century problems.”

Bureaucratic hurdles and legal uncertainty are what families and friends are confronted with when a loved one passes away.

I suppose we’ve really only got ourselves to blame, being the most connected of all countries in the world. So, the review will focus on NSW, Commonwealth and international laws, including those relating to intellectual property, privacy, contract, crime, estate administration, wills, succession and assisted-decision making.

The LRC will scrutinise (their words, sounds expensive) the policies and terms of service agreements of social media companies and other digital service providers.

Facebook is at a bit of an advantage here already, having had lots of experience in this area.

On a more serious note, social media companies do handle sites of the deceased differently, from memorialising them to simply shutting them down.

Having a say in what you’d like to happen, particularly given there can be a story of a whole life recorded there, is important.

If you haven’t made arrangements for anyone to take control of your sites or access private emails, the LRC is considering whether additional privacy protections are needed.

The issue of ownership of digital assets upon death cuts across many different areas of law which is why it’s not clear and fair but complicated.

Here I was thinking I’d just leave a list of my 70,000 passwords for someone else to troll through my social media, blogs and websites if they could actually be bothered.

But really, who could forgo the opportunity to plan ahead by scheduling posts and memes to appear long after I’m gone, saying things like ‘I can see what you’re doing’ or ‘There is no Planet-B’.

Visit www.lawreform.justice.nsw.gov.au to read more.