Rest in Peace: Planning for Your Demise, Digitally

Rest in Peace: Planning for Your Demise, Digitally

Wharton emeritus finance professor Jack Guttentag is not a particularly morbid person, but he has given considerable thought to what he wants to happen to his personal and professional digital effects after his demise. Guttentag, 90, runs The Mortgage Professor, an online business that provides advice on home loan-related issues.

“I don’t have any intention of dying soon — I have a five-year business plan — but I need to approach this chore as if I have very little time left,” he says. “It isn’t easy.”

Upon his death, Guttentag has written instructions to his wife to put his website up for sale in consultation with his two partners and attorney. Over the years, he has had offers for it, but Guttentag says he never had the inclination to give it up or work for someone else. (He expects the value, which includes several trademarks and URLs connected to the business, to grow over time.)

On his desk, Guttentag has a manila folder containing a sheaf of papers that list user IDs, PIN numbers and passwords for various online services. He has also digitized almost all the photos he has taken over the years; they are in a file on his computer and also on Dropbox, the cloud storage provider. He has not, however, digitized family pictures inherited from other family members. “My son did some of them in developing a slideshow for my 90th birthday party, but most of them are still in boxes in my office, stoking my guilt,” Guttentag notes.

At a time when most people are spending more and more hours online – and, in the process, creating a legacy of data that will outlive them — the inevitability of death poses new challenges. Not only are there consumers who, like Guttentag, wish to tidy up their virtual effects before they die; there are also estate lawyers in the early process of establishing what constitutes digital ownership, technology firms clamoring to offer new services that deal with the remnants of digital life, and social media companies coming up with platforms that memorialize the dead.

“The norms are evolving,” says Andrea Matwyshyn, a professor of legal studies and business ethics at Wharton. “There will be a feedback loop over the next few years: Customer savvy and sophistication will increase, companies will begin to streamline their approaches and the legal industry will formalize estate planning.”

Death in the Digital Age

According to a report from digital research firm eMarketer, American adults spent more than five hours each day on the Internet last year, up from four hours and 31 minutes in 2012, and three hours and 50 minutes in 2011. Social media sites occupy a large portion of that online time: Data from research firm Ipsos Open Thinking Exchange shows that Americans between the ages of 18 and 64 who use social networks say they spend an average of 3.2 hours per day doing so. Nearly three-quarters of online American adults use social networking sites, and some 42% of online adults now use multiple social networking sites, says Pew Research Center.

“Customer savvy and sophistication will increase, companies will begin to streamline their approaches and the legal industry will formalize estate planning.”

“We have become progressively more reliant on digital communication and social media,” notes Matwyshyn. “To many people, their digital persona is equally — and in some cases, more — important [than their physical] identity.”

And yet very few people have made arrangements for what will happen to their digital persona and online possessions when they die. In 2012, the federal government added a “social media will” to its list of personal finance recommendations. The government suggests appointing an online executor to be responsible for the closure of email addresses, blogs and other online accounts. This person would also carry out the deceased’s wishes with regard to social media profiles, whether his or her desire is to completely cancel all profiles or keep them up as a memorial for friends and family to visit.

Most technology and social media companies have policies around what happens to users’ online content when they die. After all, our digital effects — the pictures we post, the emails we draft and the status updates we send — don’t solely belong to us in the first place. They belong, at least in part, to companies like Twitter and Yahoo that store the information on their servers.

“Companies are in a delicate position,” says Matwyshyn. “On one hand, there are resource constraints because they are dealing with a large number of unique requests, which is expensive and time-consuming. On the other hand, treating families of a deceased user with the sensitivity that the loss of a loved one requires is the ethical and correct thing to do. There is also a business opportunity here to build goodwill with the community of the deceased.”

Last year, for instance, Google launched an inactive account manager feature that lets users decide the fate of their accounts when they die. Twitter, meanwhile, will deactivate an account upon the request of an estate executor or an immediate family member once a copy of a death certificate is provided. Facebook either removes the account upon request by an executor or allows profiles to be turned into memorials so that friends may still post comments, photos and links to the deceased’s profile.

Flickr, which is owned by Yahoo, operates under its parent company’s terms of service agreement, which stipulates that the user ID and contents within an account terminate upon a person’s death. YouTube, which is owned by Google, operates under Google’s policy. Instagram, meanwhile, says on its site: “In the event of death of an Instagram User, please contact us.”

Users might, for example, post a remembrance on their deceased uncle’s page on his birthday. Or “visit” a friend on the anniversary of his or her death. “In the past, we gathered around the gravesite, but today we have new ways to communicate on social media,” says David Bell, professor of marketing at Wharton.

“[Mourning practices] vary person to person and culture to culture,” Bell notes. “But we will see new customs develop in terms of decorum and decency as well as an emergence of different platforms and tools for people to pay their respects. Families will be able to keep these things going in perpetuity.”

But online memorials are delicate entities. Who has custody of the profile? Who gets access? Who has the right to decide what’s appropriate to include, and what is involved in those decisions? Jed Brubaker, a PhD candidate in informatics at the University of California, Irvine who studies digital identity, social media and human centered computing, is immersed in questions of digital heirlooms. “In talking about things like Tumblr, Twitter, Facebook, Instagram and other quasi-public social media that are accessible to lots of people, there’s an unresolved question of ownership,” he notes. “Is our virtual ‘stuff’ always [considered] ‘property’?”

“Communication that historically has been ephemeral is now persistent. It sticks around — there’s a record, a data trail.”

If it’s not property, though, then what exactly is it? “It’s communication,” he says. “We’re talking about content on a Facebook wall or a Twitter feed. Communication that historically has been ephemeral is now persistent. It sticks around — there’s a record, a data trail.”

Monetizing Digital Heirlooms

The vast majority of our digital assets — such as digital photos or Facebook timelines — have little value beyond the sentimental. But even these require careful estate planning, according to Gerry W. Beyer, a professor at Texas Tech University School of Law. In the old days, he says, people passed down scrapbooks, memoirs, picture albums and musty files of old newspaper clippings. “But now, many of us don’t have physical property like that to transfer. So all that stuff will disappear.”

Of course, there are lots of ways to transform those digital assets into physical objects. You could download your e-mail messages and back up your computer files on a disk, for instance, or you could put them on a CD or flash drive. You could even print them to remove them from the digital realm. But how many people actually do this? Case in point: Whenever Beyer presents at a conference, he asks the audience: “How many of you have photographs that are valuable to you that you haven’t printed?” Nearly everyone in the room raises his or her hand, he says. “If you don’t plan for these, your loved ones may lose access…. If you care what happens to your digital belongings after you die — your photographs, your home movies, your e-mails — you have to plan.”

And certain digital assets have monetary value both today and in the future, such as domain names or a blog that generates income. Avatars or virtual property in online games such as World of Warcraft or Second Life also have quantifiable value, Beyer notes.

Digital assets — personal iTunes music libraries and Kindle books, for example — are in a different class, however. If you have, say, a large digital book collection, the transfer of usage rights is limited and closely monitored. “You don’t technically own those,” says Beyer. “You have a license to use them. That license dies with you. But if those are owned in a trust, your beneficiaries may be able to continue to use them.”

Frequent flyer miles or hotel points, while also part of your digital profile, present some tricky questions, too. These assets are governed by a contract with the company, according to Wharton’s Matwyshyn. Most contracts specify that the miles and points are personal and cannot be shared unless given explicit permission from the company. “It is possible that airlines and hotels would be willing to entertain a request to transfer, but they have a unilateral right to say: ‘I’m sorry for your loss but these points are no longer valid,’” she notes.

“If you care what happens to your digital belongings after you die — your photographs, your home movies, your e-mails — you have to plan.”

A growing number of companies are finding ways to monetize post-mortem digital effects. After all, just because most of our digital content is sentimental, it does not mean it is of no economic value. “Quite the opposite, actually,” says Pinar Yildirim, a professor of marketing at Wharton. “Say you upload photos today, and 100 years later, long after you are gone, your great-great grandson wants to have them. It represents an opportunity for any company that may want to justify its investment in storing that digital content.”

Some companies, including E-Z Safe, Estate++ and SecureSafe, act as repositories for your digital accounts. They serve as virtual safe deposit boxes, holding onto your usernames and passwords. When you die, that information gets forwarded to the person or people you specify.

“After a loved one dies, oftentimes a family member or friend needs to get access to their digital material — their social media, their e-mails or they just want to pay some bills from an online account,” says Texas Tech’s Beyer, who is a national expert in estate and trust issues. “But without planning, companies may take weeks, months or even years before they grant access.”

Other companies assist in efforts to locate digital assets of the deceased. Webcease, for instance, helps people find keepsake photographs on sites like Snapfish or Shutterfly; accumulated earned miles or points on travel, hotel or airline loyalty programs; personal interactions on social and professional sites like Facebook and LinkedIn, and personal accounts on sites like Amazon, PayPal, Netflix or eBay. “They are essentially search firms that will search all over the Internet to find what’s out there,” Beyer notes.

Other businesses in this market specialize in helping family members gain access to the computers and accounts of people who have died, according to John Sileo, a Denver-based expert on identity theft and privacy. “Say your spouse or parent passed away and you need to get into his or her account, but the company won’t let you because you weren’t listed on the account, or you didn’t have power of attorney. One of your options is to enlist the help of a so-called ’ethical hacker,’” who could infiltrate accounts you have a legitimate right to, says Sileo. “There are people who are making a lot of money doing this behind the scenes.”

But these are precisely the scenarios that Guttentag, the nonagenarian Mortgage Professor, hopes to avoid. This is why he is doing his best to organize his digital effects now. “I don’t want to leave a mess for my wife and children to clean up when I die,” he says. “If that were to happen tomorrow, that pledge would not be fully realized because of the still unfinished business I haven’t yet gotten around to. But 2014 is the year.”

Online Life After Death – Digital Asset Estate Planning

Online Life After Death – Digital Asset Estate Planning

Most of us have a significant presence in the digital world whether we realize it or not.

If you were to list all your digital accounts and assets, the number would probably surprise you. You may have online accounts with banks, merchants, a brokerage firm, social media platforms, cloud storage companies, gaming sites and email providers. Perhaps you have a blog or own a number of domain names. Some items such as your digital photo collection or your Facebook log may not have a monetary value, but they may have personal meaning for your loved ones. Other items may range in value from coupon credits accrued with your favorite online retailer to a significant balance in a PayPal or even Bitcoin account. You may have thousands of frequent flyer miles, a cash-back reward balance from your credit card company, or an online trading account balance. Your online business presence may include eBay, Etsy or your own web-based company.

Whatever monetary or personal value these types of examples may possess, digital asset estate planning is essential to ensure that your online life after death is handled in an orderly manner according to your wishes.

In addition to online accounts and assets, your personal digital devices and their content should be considered as well.

Your computer or laptop as well as your tablet, e-reader, cellphone or smartphone and all manner of offline storage form part of your digital estate. These storage formats include CDs and DVDs, peripheral storage drives, and memory cards. Tangible paper records are becoming increasingly a thing of the past; for most of us, it is the digital trail we leave that tells the story of our personal, professional and financial lives.

The conductor and composer Leonard Bernstein, an icon of 20th-century classical music, passed away in 1990 and left behind a memoir called Blue Ink in a password-protected computer file. He did not share the password, and so far, no one has been able to access this presumably significant work. Clarifying your wishes regarding your digital legacy is crucial to any well-formulated estate plan. You can start by providing your executor a complete digital inventory together with the necessary means of accessing it.

Digital Assets – A New Frontier

There’s more to consider, however. From a legal perspective, the status of digital assets within estate planning is a new frontier. They may fall within intellectual property, intangible assets or license categories.    While it may seem reasonable to assume that a next-of-kin could simply step in and manage or dispose of digital accounts, this is a risky endeavor. Federal and state laws designed to prevent hacking, identity theft and online fraud can inadvertently prevent loved ones or your executor from legally accessing your digital assets if you die. Many sites and account issuers allow only the primary account holder to enjoy access and can be inflexible on that point.

In Ellsworth vs. Yahoo, a 2005 legal case out of Michigan, the father of a Marine killed in Iraq was forced to seek access through the courts to his son’s Yahoo email account after Yahoo initially refused to provide it. Yahoo eventually complied with an order to produce the email records.

While the need for a court order is extreme, some platforms such as Gmail, Flickr and Twitter request a death certificate and related documents to gain access to accounts and records. Some states such as Oklahoma and Connecticut have introduced statutes designed to provide access to the deceased person’s email and social networking accounts, but comprehensive digital asset protection and disposition after death remains a complicated matter best discussed with your estate attorney.

As stated, the goal will be to identify a complete inventory, directions for access and any information necessary for your digital assets to be valued accurately. You may prefer that some records be destroyed and the accounts closed upon your death while others be willed to specific individuals. You may wish to bequeath your laptop to one person but prefer the contents be destroyed or given to a different heir. The importance of specifying your exact wishes is not to be underestimated. Our digital lives have grown and will continue to grow exponentially, and the peace of mind that estate planning affords will remain elusive until you include your digital assets in this important endeavor.