- Can you bequeath your iTunes collection in your will?
- Does anyone know you have Bitcoins or money in a PayPal account?
- If you’ve accumulated virtual wealth in a massive multiplayer online game is that part of your estate and can you be cashed out?
- Can loved ones get copies of your Facebook photos and videos?
- What happens to your wedding videos, holiday snaps, data, email or social media accounts? More importantly, what do you want to happen? Do you want them archived, deleted, passed on?
If you’ve given these issues so much as a second thought you’re in the minority although with digital participation continuing to grow rapidly and an increasingly ageing online population that will shift.
It may seem incredulous to those still anchored to the view that social media is a young person’s game that the fastest growing social media demographic is 50 plus.
In the US 70% of 65 – 74 year olds are on Facebook, where even now there are 30 million accounts belonging to people who are no longer alive.
For those concerned about properly managing their estate, digital death raises complex issues around what constitutes an asset or special relationship and how to balance privacy and security with passing on relevant information.
For businesses that support people to deal with death – trustee companies, estate planners, superannuation funds and financial planners – digital death presents an opportunity for thought leadership, deepening client engagement and even business growth.
First let’s look at the global context.
No international standard
There’s no international standard for estate planning. The law differs across and within countries and is complicated by many factors including the jurisdiction within which a digital or social media platform operates. That aside, many countries are evolving existing laws to better deal with digital death.
For example, last month in the US the Uniform Fiduciary Access to Digital Assets Act was passed which gives the fiduciary (personal representative of a deceased person’s estate) the right to manage a digital asset like any other tangible asset.
There have not yet been specific changes to estate planning laws in Australia but that there are no simple answers. For example, including a password in a will could backfire because under probate it becomes public.
National Manager of Estate Planning for Equity Trustees Anna Hacker says that to date, social media hasn’t been a big issue in estate planning, as the older generation is not yet attuned to it. “However we expect that it will become a growing issue in the future because the legal treatment of digital assets after death is not clear cut,” said Hacker.
“We are increasingly raising the issue with clients when providing an estate planning service to ensure they have thought through the implications.”
Some legal questions people need to think about when drafting a will are –
- What constitutes a document (a will can be drafted on an iPhone but what about a note in a social media account)?
- What constitutes a special relationship (can a will be challenged by a virtual friend)?
Different platforms, different terms
Each of the social media platforms also has a different approach to dealing with death.
- Facebook – Facebook protects the privacy of someone who dies by securing the account, although a family member can request that the account be removed or memorialized. Even if someone leaves you his or her password it’s a violation to log in. However, the social network is evolving its approach in response to real events. For example, a father who lost his 22-year old son asked Facebook to help him access videos and photos. Facebook responded using its Look Back feature to create a video of favourite moments that people can view but not share, an attempt to balance sharing and privacy.
- Twitter – Twitter will work with an immediate family member or estate representative to deactivate an account.
- Google – Google has developed an inactive account manager which gives someone access to your Google account if you die.
It lets you set up a timer so that if you don’t use your Google account for a period Google notifies and give the person you’ve named access to selected parts of your account.
To prevent malicious people trying to close real accounts, social media platforms need to validate family members and get certified copies of death certificates. Even with clear instructions and policies about digital closure it’s a time consuming process.
If you’re the executor of a will, you may not even know where to start. If social media accounts aren’t dealt with properly there can be unwanted consequences.
There are many stories of accounts that have continued to operates and where earlier likes or dislikes triggered responses on other people’s pages, even after death.
The business of death
For businesses that support people to deal with death, digital death is an opportunity for –
- Thought leadership
- Client engagement
- New products
- Business growth
1. Thought leadership
Businesses can showcase their expertise and provide valuable insights that help people consider this emerging issue by –
- Blogging – publish high quality content on the state of the law and what people can do to audit and plan for digital death on your company blog
- Publishing an eBook – produce a book of questions and answers that you can email to existing clients or present to client leads to help them get their head around the issue
- LinkedIn – join a LinkedIn group and discuss emerging legal issues with peers from around the world
- Videos and podcasts – interview digital estate businesses or put up your own people to talk through the various issues
The Digital Beyond is a good example of a company that is doing so by providing many free but also paid legal resources on digital estate planning that includes –
- A list of current laws in the US pertaining to digital assets.
- Articles and books relevant to digital assets and digital estate planning.
- Online services and resources to help professionals with digital estate planning.
2. Client engagement
- You’re probably already dealing with estate issues for clients who may not be aware of the impending impact of digital life on their affairs.
- Take the opportunity to strengthen your relationship by educating them.
- You could provide guidance how to audit digital assets or let them know the kind of archiving lists on the market.
3. New products
- There’s an increasing suite of new (mostly technical) tools that give people better control over digital life.
- They vary from practical tools like Eterniam, which allows you to preserve photos, videos and documents or creative ones like Eterni.me, which allows you to create an online avatar for loved ones to engage with after you are gone.
- There are also business solutions, for example, Estate Map is a cloud-based estate planning tool (still under development) which plugs into an estate planning law practice, giving clients a secure place to store and pass on important estate information.
4. Business growth
- Death is emotionally difficult enough without discovering that you have no idea what digital assets a person had or what they wanted done with them. Here trust, estate and legal businesses can extend their existing advisory services to offer clients better support.
Click here to view original web page at The business of digital life and death
Consumers must beware potential ownership issues following death or loss of capacity
Clients should not overlook digital assets as part of their estate planning, the Law Society has recommended.
Gary , partner at Joseph A Jones Solicitors, said: “When you’re taking will instructions, if you’re using the Wills and Inheritance Quality Scheme protocol, there’s a personal asset log there that clients can write down all of their assets, including their digital assets.”
Digital assets are defined as any asset accessed or held online, so an assets log will help family or professional advisers locate them.
“We are leading a digital life,” said , “and that needs to be taken into account when making wills.”
The advice says that having a list of all online accounts, such as email, banking, investments and social networking sites, will make it easier for family members to piece together a digital legacy, adhere to an individual’s wishes and could save both time and money.
“If you have a Twitter account, your family may want it deactivated and – if you have left clear instructions – it will be easier for your executors to have it closed,” he added.
Half the problem of not being able to close social media accounts after a client dies is that a will was never been made in the first place.
“If you have an up-to-date valid will with appointed executors, you’re halfway there to getting these things sorted out as it’s the solicitor who has the golden ticket to unlocking the assets,” said.
However, personal assets log should not list passwords or PINs as an executor accessing the account with these details could be committing a criminal offence under the Computer Misuse Act 1990.
Leaving a list of online accounts and ensuring it is kept current is enough.
, who contributed to the recommendations, said solicitors shouldn’t be penalised if they do not make clients keep a log of digital assets.
The society said a practice note on the matter is on the agenda.
|Promising start but more needs doing, says James Ward
“The recent recommendations from the Law Society in relation to this problematic area of law should be seen as a promising start but much still needs to be done.
“There are multiple problems currently facing private client solicitors within this remit, and they won’t be solved any time soon. The location of digital assets for starters may lead to multi-jurisdictional legal issues in getting access to the asset.
“There is currently no joined-up international law on the subject. Questions could also be raised over the actual ownership of the assets, such as music which is often held by the individual on a licence that cannot be transferred.
“As well, there are legal, practical and security difficulties with using someone else’s password, and there are valuation issues of assets for fiduciaries when dealing with taxes such as inheritance tax.
“Another issue is the delay in getting access to the assets. For instance, key information, held online, used in the running of a small company could be inaccessible for a lengthy causing significant difficulty to that company.
“Currently, the Uniform Law Commission in the US is drafting suggested legislation.
“However, until that is done and then adopted worldwide, it is essential to make your clients aware of the issues, keep accurate records, be aware of end-user agreements and sometimes taking the old-fashioned approach and occasionally press print.”
Late final yr, Brian S’Connell raised consciousness across the issue of planning for a client’s digital estate as a visitor blogger on the Cavalier Strategy. Since then, there was a flood of protection on this subject from a number of media retailers, reinforcing the identical factors that I’Connell raised in his publish.
There are, as is often the case, some extra twists and turns to this subject, and Steve Parrish, a frequent contributor to Forbes and National Advanced Solutions Director with the Principal Financial Group, makes some stable suggestions in his current perception on this matter.
the hidden traps
Even doing every part proper isn’t any assure. There are subtleties on this growing space of planning which can be troublesome to anticipate.
Case in level is the instance from Parrish’s column on Forbes.com concerning the trouble a widower faced upon his spouse’s dying with an digital banking account.
It appears that the digital entry to the account in query was tied to the deceased spouse’s consumer identify and password. The financial institution shut down the username and password upon her demise as is their coverage. The account was effective in each attainable method save one: He merely couldn’t entry it electronically upon her dying no matter the truth that it was a joint account and he had a energy of lawyer.
They did all the pieces proper, besides arrange particular person entry credentials for every of them.
The different space of publicity explored in Parrish’s column is how digital assets are handled in the business world, notably within the age of Bring Your Own Device (BYOD) digital property – units together with private sensible telephones, laptops, tablets and others used for enterprise.
IT departments wrestle with these points on the time of an worker’s separation from the corporate. Imagine the magnitude of the problem when that worker has handed away versus merely transferring on to the subsequent step of their profession?
What’s on the system? How can the machine be legally accessed?
Big questions with tough solutions because of legal guidelines designed to supply fraud safety. As Parrish factors out, there are potential authorized points for each the employer and the heirs of the deceased worker.
lack of uniformity
As with many different facets of property planning, the particular challenges a shopper could face are sometimes depending on the place they occur to stay.
While some states have but to enact any laws on this space, there are a variety of states, eighteen in truth,that have laws on the books, legal guidelines at the moment proposed or have seen proposed laws in latest historical past.
While there are some commonalities among the many laws, state to state variation makes it vital to know the present regulation within the consumer’s state of residence, in addition to perceive what adjustments must be made to their plan ought to they transfer out of state.
a frequent answer
Even with the brand new features of this challenge launched by Parrish in his columns, the prescription stays the identical: Get organized.
Back in November, we launched our Digital Estate Planning Organizer to assist advisors plan the administration of their shoppers’ digital property upon their demise. While it’s a stable useful resource for a lot of shoppers, it didn’t tackle shoppers who’re staff in a BYOD setting, nor did it tackle that very same problem from the attitude of the enterprise proprietor.
That leads us to immediately’s introduction of the expanded Digital Estate Planning Organizer, up to date to deal with the aforementioned extra challenges: Employer-owned digital property saved in a BYOD setting and the distinctive wants of the enterprise proprietor and the administration of their digital belongings.
The actual query is that this: How does an advisor begin to implement this in his or her follow?
It begins with an consciousness of the problems and an understanding that each prospect and shopper faces these pointswhether or not they understand it or not. From there, it’s a matter of a discovery course of that begins with a easy query:What have you ever completed to plan for the instant transition of your digital belongings?
There will virtually actually be a little bit of clean stare, adopted by “What do you imply?”.
Armed with the information and the sources wanted to stroll them by the problems, you’ll be able to then information your consumer or prospect by the method of planning for his or her digital estate as part of your regular planning course of.
- In 2013, an article titled: “Facebook after death: an evolving policy in a social network” by Damien McCallig was published.
- In 2013, an article titled: “Coping Online with Loss: Implications for Offline Clinical Contexts” by Joanna Pawelczyk was published. Thank you Dr. Carmel Vaisman for sending me the link.
- In May 2013, Maria Perrone’s article: “What Happens When we Die: Estate Planning of Digital Assets” was published.
- In May 2013 an article by Jed R. Brubaker, Gillian R. Hayes, and Paul Dourish was published, titled: “Beyond the Grave: Facebook as a Site for the Expansion of Death and Mourning“.
- A paper titled “Digital Afterlife: What Happens to Your Data When You Die?” was published in May 2013, by Stephen S. Wu.
- In May 2013 a paper titled “Digital Estate Planning: Is Google Your Next Estate Planner?” was published, by Jamie Patrick Hopkins.
- In April 2013, the paper “Afterlife in the Cloud: Managing a Digital Estate“, also by Jamie Patrick Hopkins, was published.
- In February 2013 a paper titled “What happens to my Facebook profile when I die?” : Legal Issues Around Transmission of Digital Assets on Death” was published by Lilian Edwards and Edina Harbinja. Thank you Paul Golding for sending me the link.
- Since September 2012, the article “There Isn’t Wifi in Heaven!” – Negotiating Visibility on Facebook Memorial Pages by Alice Marwick and Nicole B. Ellison is available online for free download. Thank you Dr. Carmel Vaisman for sending me this link.
- In 2012, an article titled “Grief-Stricken in a Crowd: The Language of Bereavement and Distress in Social Media” was published, by Jed R. Brubaker, Funda Kivran-Swaine, Lee Taber and Gillian R. Hayes.
- In 2011, the article “”We will never forget you [online]”: An Empirical Investigation of Post-mortem MySpace Comments” was published, by Jed R. Brubaker and Gillian R. Hayes.
- In 2011, the article “Security and privacy considerations in digital death” was published by Michael E. Locasto, Michael Massimi and Peter J. DePasquale.
- In 2010, Jed R. Brubaker and Janet Vertesi’s paper “Death and the Social Network “was published .
- In 2008, the current term “Digital Legacy” was then referred to as “Digital Heirlooms” and an article titled: “On the Design of Technology Heirlooms” was published by David Kirk and Richard Banks.