What Happens to My Digital Assets on Death or Incapacity?

What Happens to My Digital Assets on Death or Incapacity?

What Happens to My Digital Assets on Death or Incapacity?

Click here to view original web page at What Happens to My Digital Assets on Death or Incapacity?

A recent New York case, Estate of Swezey (NYLJ, 1/17/19 at pp. 23, col. 3) highlights the confusion in the laws of many states regarding the administration and distribution of digital assets at a decedent’s death. In this case, decedent’s executor asked Apple to turn over decedent’s photographs stored in his iTunes and iCloud account. No provision in decedent’s Will specifically authorized the executor to access decedent’s digital account. The Court relied on the relatively new section 13-A in the New York Estates, Powers and Trusts Law (“EPTL”), Administration of Digital Assets which provides for different procedures for the disclosure of electronic communications, in contrast to the digital assets. To disclose electronic communication specific user consent is required or a specific court order for an identifiable reason. Other digital assets, such as the photographs requested by decedent’s Executor, are treated like other assets which belonged to decedent at death and are within the purview of the Executor’s general responsibility. The Swezey Executor was trying to access decedent’s photographs. The Court concluded that Apple was required to disclose those photographs.

The Uniform Law Commission promulgated the Uniform Fiduciary Access to Digital Assets Act (the “Original Act”) in 2014. In 2015 the Uniform Law Commission further refined their attempt and came up with a Revised Uniform Fiduciary Access to Digital Assets Act (the “Revised Act”).

The Original Act treated digital assets like traditional assets. The owners could decide what would happen to them and the fiduciaries could have control of them when the owner died or became incapacitated. After a person died, his or her executor would have the same right to access the deceased person’s accounts as the deceased person had during life. And if the executor did not have needed login or password information, he or she could ask the company for access and the company would have to comply. This approach would have given executors the access they need to wrap up the estate – including passing on photos, archiving emails, deleting or modifying social media accounts, paying final bills through bill pay, and canceling subscriptions.

This Original Act met with strong opposition from technology companies as well as from privacy advocacy groups such as the ACLU. They argued that providing executors the authority to access all of a deceased person’s digital assets would invade the deceased person’s personal privacy in ways that they would not have imagined or wanted. Additionally, technology companies argued that elements of the Original Act were contrary to federal privacy laws and state and federal computer fraud laws, forcing companies to violate one law while complying with another.

The Revised Act addressed many of these concerns and greatly reduced the authority of an executor to access digital assets. It also prioritized the document that would control some of these issues.Here are some of the key changes:

  • An executor does not has authority over the content of electronic communications (private email, tweets, chats), unless the deceased person explicitly consented to disclosure.
  • An executor can get access to other types of digital assets, such as photographs or an eBay or PayPal account.
  • The first place to look for authority to disclose digital assets is an “online tool,” separate from terms of service, through which users during their lifetimes can determine the extent to which their digital assets are revealed to third parties, including fiduciaries. (On Facebook, for example, the online tool is known as Facebook Legacy Contact.) If a user has provided direction through the online tool, it will supersede conflicting directives, including those in a Will.
  • Next look to the decedent’s or incapacitated person’s Will, trust or power of attorney to see what explicit instructions and authority, if any, are given.
  • If a fiduciary does not have explicit permission through a Will, trust, or power of attorney, look to the terms-of–service agreements to see the rules regarding access to a deceased or incapacitated person’s account.
  • If the terms of service do not cover the issue, the Revised Act’s default rules apply. Those default rules recognize multiple types of digital assets. For certain digital assets, like virtual currency, the Revised Act gives fiduciaries unrestricted access. For electronic communications, however, the statute does not provide fiduciaries access; instead, it allows them to access a “catalog” of communications consisting of metadata such as the addresses of the sender and recipient, as well as the date and the time the message was received.
  • Fiduciaries may request court orders if necessary. In general, access is only granted to assets that are “reasonably necessary” for wrapping up the estate.
  • Custodians may not provide access to deleted or joint accounts.

The Revised Act has been adopted by a majority of states in one form or another, including New York as evidenced by the enactment of Article 13-A in the EPTL, Administration of Digital Assets. However, as an individual, to be most certain you achieve the results you want, it is best you decide what you want to happen to your digital assets and on line presence if you are incapacitated or dead and have your power of attorney, Will or Revocable Trust reflect these wishes. It is a good idea to catalog your on line presence. Leave specific instructions about how to access your accounts. Include websites or devices needed, as well as usernames and passwords. Tell your executor or attorney in fact what to do with each account. Do you want your stored photos to be shared with family, your twitter account deleted, your blog to be archived and saved? Be as clear and thorough as possible. Why allow someone else to decide? Do it yourself with the help of your estate planning professional.

How to Manage Household Finances After Your Spouse Dies

How to Manage Household Finances After Your Spouse Dies

How to Manage Household Finances After Your Spouse Dies

Click here to view original web page at How to Manage Household Finances After Your Spouse DiesPhoto: Getty Images

Few people want to consider what might happen after the death of a spouse, but it’s an inevitability that many of us will have to prepare for—and for widows or widowers who aren’t prepared, the period immediately after a spouse’s death can be a financial nightmare.

The New York Times has an in-depth guide to managing household finances after a spouse dies, starting with the advice to share as much financial information as possible before this even happens:

Susan Covell Alpert was crushed by grief when her 71-year-old husband, Larry, died of leukemia in 2008. Adding to her misery, a tidal wave of financial decisions and tasks demanded the new widow’s attention at a time when she could barely think straight.

Like many couples, Susan and Larry, who were married for 46 years, had divided the financial chores. Larry handled the investments, and Susan paid some bills. Though Ms. Alpert owned a business arranging travel incentives for large corporations, she was not prepared to manage the household’s financial affairs.

“I knew every stock, and I knew where everything was,” said Ms. Alpert, 78. “But I didn’t know what to do with it all.”

If you and your spouse also divide financial chores, make sure both of you understand not only the state of the household finances but also how to complete each other’s tasks. Consider creating a hard copy list of financial accounts, with login and password information where appropriate—and keep it updated. If you’re concerned about password security, you can deposit that list with your lawyer or with the executor of your will. (You do have a will, right?)

After the death of a spouse, the surviving widow or widower will be faced with myriad tasks, from arranging for the funeral to dealing with the deceased’s credit cards. The NYT suggests creating a prioritized to-do list:

Surviving spouses can alleviate some stress by attacking the to-do list in stages, [certified financial planner Alexandra Armstrong] said. At the top: Notify the Social Security Administration, call the life insurance company and pay important bills, such as those for utilities and property insurance premiums. If a husband was still working when he died, his widow should check with his employer for any unpaid salary, accrued vacation days and retirement plans. She also may be eligible for veterans’ benefits.

One of Ms. Alpert’s first moves was to name her two adult daughters as her agents for her financial and health care powers of attorney.

Read the full article to learn more about how to both prepare for and handle the financial tasks that arise after the death of a spouse—and if you have additional advice to share, please do.


Plan forward in your will to your digital self

Plan forward in your will to your digital self

Plan forward in your will to your digital self

NEW YORK (Reuters) – In the not-so-olden days of a few years ago, relatives might have sifted through stacks of documents to sort out your affairs after you died. These days, much of your presence in this world is floating around in the cloud: email, online drives, social media. Even your financial accounts are probably paperless at this point.

To give your family access to your accounts after you die, you need to do some work in advance, leaving instructions in your will for everything from access to your Facebook page to how to redeem your cryptocurrency.

“Most estate plans are silent on all this stuff – and that is a big problem,” said Kevin Ruth, head of wealth planning and personal trust for Boston-based Fidelity Investments.

Here are a few tips on how to deal with your digital legacy:

* Write it all down.

Passwords and logins may be all in your head, but they are not in anybody else’s. So do a full accounting of everywhere you might be digitally – Facebook, Instagram, LinkedIn, bank accounts, 401(k) providers, bitcoin exchanges – and document how to get access.

The importance of this hit Houston financial planner Ashley Foster like a sledgehammer around three years ago. The 33-year-old had a close friend from high school who was struck down by aggressive colon cancer, and he watched helplessly as the family struggled to get access to all of his friend’s accounts.

Foster took action to get his own digital life in order – documenting logins and passwords, putting them in a safe deposit box, and giving instructions to loved ones. He counsels his clients to do the same.

How you do that is really about personal preference. If you are the kind of person who uses Post-Its, then use them – just get the information down, said James Lamm, an estate planning and tax attorney with Gray Plant Mooty in Minneapolis.

Nowadays there are online “safes” where you can store codes like this, such as Fidelity’s FidSafe – a service available to everybody, not just the firm’s clients, notes Ruth.

* Appoint a digital executor.

In a traditional will, you name certain people to handle affairs if you pass away or are incapacitated. Same goes for digital property. This could very well be a different person than the one handling your financial or healthcare directives.

If you are drafting a will now, make sure to include these digital issues with the help of an estate planning attorney. If you have an existing will that was drawn up in the past, it is very likely you need to update it, since “almost nobody” was dealing with these issues 10 years ago, advised Lamm.

You should also make sure to back up your information to a laptop or thumb drive, which will make it easier for your representatives to manage than just the cloud. Facebook, for example, has a button to do just that: Under ‘Settings’, click ‘Download a copy of your Facebook data’ at the bottom of General Account Settings.

* Think about your wishes

Would you prefer that your accounts be deleted altogether? Or do you want them to stay up indefinitely as a memorial? These are the kinds of decisions you can make now. On Facebook you can designate a “legacy ,” who can handle some functions of your account, but not all (such as seeing private messages).

Remember that sites are not all alike. Facebook, in particular, is known to be militant about never allowing anyone to access to your personal account, which has led to questions of legality that are still before the courts, said Lamm.

*Do not be cryptic about crypto

Imagine you are a “bitcoin millionaire” who passes away unexpectedly: It can be like losing a winning lottery ticket. “Sometimes people know that their loved ones owned bitcoin, but they have no idea where it was purchased or how to access it,” says Fidelity’s Ruth. “And we can be talking about a significant amount of money.”

Bitcoins come with a “private key,” or a secret number that allows the currency to be accessed and transferred. Bitcoin exchanges, for their part, have their own usernames and passcodes on top of that. Leave all this information behind, said Lamm – or your crypto bonanza could be gone forever.

Editing by Beth Pinsker; Editing by Lisa Shumaker

Our Standards:

The Evolution of The Self

The Evolution of The Self

The Evolution of The Self

Click here to view original web page at The Evolution of The Self

Written by Markus Iofcea & Oleksiy Novak, UBS Y Think Tank

Leaving behind a legacy is a fundamental part of human identity. But how will sophisticated online data and revolutions in AI impact material, biological and ideological legacy?

Nature and the environment used to be the main driving forces of biological evolution. At a certain point in time, humanity disrupted this equilibrium. Instead of having to adapt to the environment, our ancestors built tools that enabled our species to circumvent the need to evolve.[1] Centuries of cooperative efforts and tool building introduced the possibilities of space travel, wireless communications, instantaneous information exchange and an exponentially-growing technological frontier. Today, technologies like Artificial Intelligence and the Internet of Things allow us to track, aggregate and analyse more data about ourselves than ever before. Services like Spotify, Facebook, Amazon already know more about our personal preferences than our closest friends. Based on the accumulated data, these and other ecosystems are building online versions of your identity, or simply put, your Digital Self. For the time being the Digital Self is only a distorted representation of the true self. However, as the world is becoming more interconnected, the number of data points that are able to capture even the most complex elements of the inner identity (emotions, feelings, thoughts) are becoming feasible.[2] It will soon be possible to create, combine and connect high resolution copies of a person’s multiple identities and upload it to a digital archive, essentially constructing a dematerialised version of you, a digital you. When combined with general artificial intelligence, the Digital Self can become more than an aggregation of identities, it can become a self-conscious entity with important implications on society, and in particular on the foundations of human legacy.Alicia Vikander in Ex Machina

Leaving behind a legacy is a fundamental characteristic of humans. For some, creating a long lasting legacy can even become the purpose of life itself. Human ability to perceive time means that not only do we live in the present moment, but can also recall the past as well as create a vision for the future. The sense of time motivates individuals to leave behind a resonating echo of oneself in the hopes of being remembered even when the physical presence fades into the past. This resonating echo is preserved in the form of the legacy humans leave behind. Legacy can be decomposed into three categories: material legacy, biological legacy and ideological legacy.[3] With recent technological developments, all three constituents are approaching a revolutionary transformation. More specifically, the emergence of the Digital Self will have profound consequences on inheritance, evolution, and ideological foundations of a future society.

Your future grandchildren will inherit a digital version of you

While older generations are still holding on to their physical libraries of music, books, movies and pictures, the same cannot be said for those who were born in the last decade. Today’s youth is born digital and is capable of living in a world that is heavily reliant on technology. The trend towards digitisation will continue with new generations having fewer attachments to physical object. Already today, many individuals are moving towards a growing invisible library of documents, pictures, songs and soon a million other data points. We are all storing a perpetual timeline of information that ranges from the least significant preferences to the most important life moments. As a consequence of such transformations, material legacy will most likely be redefined and become more than just a means of passing on physical objects to new generations. There are drawbacks to the current ways of passing on inheritance across individuals. For instance, physical objects are limited in their use by multiple individuals, meaning that only one person usually receives the inheritance of an item. Physical heirlooms are prone to degradation and can lack emotional connection between the deceased and the recipient. What if a person’s legacy could become something much more meaningful, inspiring, and eternal than a physical object? As underlined previously, human possessions are shifting online, and the presence of digital artifacts is increasing in day-to-day interactions.[4] Our online identities are encompassing all of the digital memories we are creating throughout our lives. These identities contain traces of individualism; that is something that is hardly captured in physical items.

For this reason the Digital Self, the aggregation of all identities of an individual, is becoming the new meta of human inheritance.

Instead of leaving behind a physical object, humans will one day inherit the Digital Selves of family members, friends and acquaintances. Digital selves will serve the purpose of continuing the interactions between the living and the deceased. Human will be able to communicate with the deceased, relive memorable moments spent together, ask questions and even seek advice. Death will most likely transform into a concept involving a gradual shift of states instead of an abrupt end of connection. This continuous interaction could have the potential to alleviate humans of the psychological trauma related to death. But it could also manifest itself into an everlasting yearning for the past. What is clear however is that disputes over who gets to inherit the family heirlooms will diminish. Everyone can have access to the Digital Selves of the deceased due to their ability to be replicated.Will legacy live on in material objects? Photo credit Dakota Corbin

Imagine a human raised entirely by an A.I. Would he think the same as us?

Up until recently other humans were responsible for the transfer of ideologies to newer generations. Most commonly, individuals built their foundation of thought either through first hand (role models, teachers, parents) or second hand (books, scientific journals, folklore) knowledge transfer. Today’s technological expansion is shifting the balance of how knowledge is passed down generations. More frequently humans learn through interactions with information appliances rather than other human beings. These information appliances enhanced with the power of Artificial Intelligence can make the process of knowledge transfer automated and tailored to each individual’s learning capacity. It is possible to imagine a future in which the Digital Self takes on the role of becoming the teacher since it already knows about the particularities of each individual. Ideological legacy will soon be in the hands of the AI, which in turn can have important consequences for the further development of the ideologies themselves.

The learning process will become more tailored and specialised to an individual’s interests. When the Digital Self knows which are the best parameters to use to enhance a person’s learning experience, the method of knowledge transfer as well as the type of content will likely become more fragmented. A person would not need to rely exclusively on one Digital Self to pass on the information. People who have been recognised for their great achievements over their lifetime could be persuaded to “donate” their Digital Self to humanity. All the knowledge base, character traits that were accumulated by our ancestors, would be available for others to interact with and learn from. Imagine living through life with your childhood idols by your side, allowing you to build truly personal connections with digital mentors.

This would have a profound impact on generations to come, because they would have unlimited opportunities to embrace, study and apply the characteristics of great human beings.

Instead of focusing on the ‘capture all approach’ current education systems are relying on, future generations could start pursuing what really interests them. Although external factors, such as other individuals, will continue to have a strong effect on what new generations learn in their cognitive development, over a long enough period of technological influence it is possible to imagine a society that is connected by a single set of principles that have been passed across generations.Who will be the teachers in tomorrow’s world? Photo credit Cristian Newman

The descendant of the homo sapiens will exist online

Humans have become the sculptors of their own environment. We are actively involved in creating, modifying, altering and building new paradigms of life. Evolution is becoming increasingly a technological phenomenon and less a biological one. One such example is the extension of human senses beyond their natural abilities. Bio-hacking pioneers like Tim Cannon are using magnets embedded beneath the skin to allow individuals to detect nearby electromagnetic fields.[5] This is just one example among many that merge biological sensory systems with technology. Humans are literally extending their perception of the physical reality with existing senses and are becoming a hybrid of biological and digital systems.

We have already seen how our existing bodies are being modified to become increasingly efficient at what we already are designed to do, but the fact remains that human genes are keeping society on a leash. As much as we continue hacking our bodies with technological innovations, humans are still designed based on biological foundations. And despite all the progress society has achieved in the last centuries, basic natural instincts are still dictating the paths of our lives. Instead of making evolutionary steps how can we achieve an evolutionary jump? If one were to design a completely new being using current and potential future technologies, what would that being look like?Future Technology & Human Optimisation, VICE Media

The data we are continuously contributing to build higher resolution versions of the Digital Self serves as the foundation for this jump in the evolution of the homo sapiens. Prior to digitisation, extended identity was something that could only be perceived implicitly through a collection of physical objects a person chose to own.[6] Today, extended identity has become more explicit and dynamic since it can actually be visualised within online activity. Identities have become themselves digital objects, that can be copied, upgraded or deleted. This online identity re-construction, combined with artificial intelligence has the potential to create a new form of being, a digital being. A digital being is not simply another form of general artificial intelligence, it is much more than that. Since these beings will be based upon the identities of humans, they will inherit our individuality. A collection of such digital beings, all created from the unique identities of humans, would combine to form a new type of society.

These digital beings would not be creatures of the flesh, meaning that they would have many interesting properties that go beyond the biological constraints of the homo sapiens.

Unlike humans, these entities would not be weighed down by age, they would be able to live indefinitely. The digital property to self-replicate would allow these beings to infinitely venture into different pursuits of life where each copy would take on a different journey. They could create simulated worlds of their own in which they would experiment with possibilities of the universe. Travelling distances would only be limited by the fundamental physical properties, meaning that these descendants of the humans would most likely become an intergalactic species. A society of such beings would exist in multiple shapes, each individual could exist as a single entity, or due to their digital nature they could combine into a single living organism that has the properties of multiple individuals as well.

The upcoming technological evolution will not exist in absolute terms. Most likely our species will expand into different directions. Like a spectrum, there will be a range of possible alternatives from humans that continue existing in their original biological form, all the way to completely digital beings. What is interesting is that evolution will become something that is chosen and not created by chance. Only time will tell how these transformations will be perceived in the future. What is yet to be seen in light of these technological shifts is whether qualities that make us genuinely human (irrationality, emotions, egocentrism) will disappear with time, or on contrary, become even more pronounced and accepted in the future. Will humans become even more human, or will they blend with the machines and converge towards a path of singularity?


[1] Harari, Yuval N. Sapiens: a brief history of humankind. New York, NY: Harper, 2015.

[2] Miessler, Daniel. “The Real Internet of Things.” danielmiessler.com, 2015.

[3] Rebecca Gulotta, William Odom, Jodi Forlizzi, Haakon Faste. Digital Artifacts as Legacy: Exploring the Lifespan and Value of Digital Data

[4] William Odom, Richard Banks, Richard Harper, David Kirk, Sian Lindley, Abigail Sellen. Technology Heirlooms? Considerations for Passing Down and Inheriting Digital Materials.

[6] Russell W. Belk. “Possessions and the Extended Self.” J Consum Res; 15 (2): 139-168, 1988.


Protecting Your Digital Assets After Your Death

Protecting Your Digital Assets After Your Death

Protecting Your Digital Assets After Your Death

Click here to view original web page at Protecting Your Digital Assets After Your Death

Silver Imac Near White Ceramic Kettle

As this recent New York Times article points out, many of us consider where our artwork or jewelry will go after our passing, but far fewer of us remember to consider what will happen to our digital assets upon our passing.

As digital assets are a new area of consideration, coming into existence only within the last decade or two, it’s understandable that they’re often overlooked or not well understood. Yet with the proliferation of online presences, forgetting to plan for what will happen to your various internet accounts upon your passing can result in a significant loss. Many popular websites, such as Facebook and Google, have very specific protocol in place to allow you to control what happens to your accounts upon your passing. Other sites, such as Twitter and LinkedIn, do not provide the deceased with as much control, but do allow a next-of-kin to close the account with proof of a death certificate.

With these protocols in place, it is advisable to look into how your online accounts would be handled upon your passing, and to make choices now that allow you to control your digital assets in the way you best see fit. In addition to this online account management, you should provide your account information and wishes to a trusted loved one. Finally, codifying your wishes through a written document prepared by an estate planning attorney further ensures that your wishes regarding your digital assets will be complied with upon your passing.

For many of us, our lives are documented and memorialized through online resources. Don’t let this invaluable information pass along with you, without making proper arrangements. Now is the time to plan for the protection of your digital assets!