Two things in life are certain: death and taxes. Amazon and other international corporations have found ways* around the latter, but no one can avoid the former.
In the age of Facebook and Google accounts, and with the existence of services such as iTunes where people invest considerable sums in entirely virtual goods, the question needs to be asked: What happens to your online profile and assets in the event of your passing?
Nobody likes to contemplate their death, but in the analogue world we make arrangements – in terms of a will. So why not include online?
Social networks are a huge repository of assets – documents and pictures. iTunes zealots might have invested in libraries stretching to tens of thousands of titles – is that part of the deceased person’s estate?
Not as far as some tech firms are concerned.
There are two parts to dealing effectively with your earthly IT estate: the physical devices and the content of online services. Given the declining cost of hardware, I’d argue the greater value lies in the digital stuff online. Your digital legacy has residual value and it needs to be treated as a valuable asset.
Obtaining access to online accounts of deceased family members has often been a fraught experience. Just over a decade ago, the argument regarding ownership of digital content came to a head when the family of the soldier Justin Ellsworth sued Yahoo! to get access to his email account after his death. Yahoo! only handed over the data when ordered by a court, despite being shown proof of Justin’s passing.
In response Yahoo! changed its policy with regard to what happens after death and effectively, when a user passes, so does the account. It’s in the terms of service. Bummer. With regards to other service providers, the way in which they deal with a user’s death varies dramatically. Some providers won’t even entertain the notion of doing anything, the Yahoo! approach.
Other providers will, with proof of passing, present a number of options. Some services even provide a dead man’s switch that will enable your loved ones to gain some degree of account or information recovery after the event.
Google inactive account manager provides a dead-hand mechanism, configurable ahead of time, to allow the contents of an account to either be completely removed or released to up to 10 nominated contacts – assuming they have the required identification for security purposes. To make it crystal clear, your account will not be available for login. Access to the service will not be granted. This process only delivers the content rather than reclaiming the account.
It would also be good manners to let your next of kin/nominated representative know these options are set on your account. To get that email without realising you were the nominated person could be very distressing. The information required to recover an account usually consists of: birth certificate, death certificate, proof of assignment over the account in question.
When 15-year-old Eric Rash committed suicide in 2011, his family and friends wanted to know why.
In a bid to find answers, they went to Eric’s Facebook account, and after failing to guess his password, appealed to the social media giant to grant them access.
The Rashes, who live in Virginia, tried to fight their case in court, but soon found there just wasn’t any legislation that covered the management of “digital assets”.
The family’s tragic battle is just one of many examples in which the internet has been shown to be woefully unprepared for dealing with death.
People are beginning to realise what they could lose”
Paul Golding Co-founder, Cirrus Legacy
In the two years since the Rashes’ case, which led to the drafting of a federal law concerning the data of minors, few countries have issued clear guidance on the rights of families to access their deceased loved ones’ data.
And despite the fact that we put more of our lives in the cloud than ever before, few of us are preparing for our digital afterlife.
“We’re accumulating far more digital records in our lives than we are physical ones,” says Evan Carroll, who runs The Digital Beyond, a website which explores the subject of digital death.
“But we haven’t yet entered the age where we are taking the question of what happens to those records seriously.”
Since Mr Carroll and his friend John Romano first raised the issue of the digital afterlife at the South by Southwest (SXSW) festival in 2009, some prominent companies have developed policies for dealing with deceased customers.
Google has a step-by-step process allowing users to plan what they want done with their account, and will sometimes provide the contents of an email account which hasn’t left specific instructions, after a “careful review”.
Facebook and Yahoo have taken a stricter stance, and won’t hand over data without a court order, but the former allows relatives to choose whether they want to close an account or turn it into a memorial page.
However many web companies are lagging behind.
Cloud-based services which store our financial details, emails, music collections, social media interactions, photos and many other potentially precious items have different policies on data ownership, if indeed they have any.
As a result, it is more difficult to bequeath your iTunes library to a loved one than it is to leave your CD collection to them in a shoebox.
So why are we leaving our digital identities hostage to fortune?
Part of the problem is that internet users have tended to be too young to be worrying about their mortality.
But as the average browser gets older (the Office for National Statistics reckons almost 70% of all 65-74-year-olds in the UK are online), the idea of drafting a “digital will” is taking hold.
“We’ve seen several thousands sign up to our various membership packages,” says Paul Golding, who co-launched Cirrus Legacy – a service which allows you to record login details for all your online accounts and leave instructions to a nominated guardian – just a year ago.
“People are beginning to realise what they could lose.”
Three steps to a digital will
Carroll and Romano offer a three-step process for preparing a digital will, comprising:
Awareness – write a proper inventory of all online accounts, so that loved ones know they exist
Access – work out what details are necessary to gain entry to the accounts
Wishes – detail who you want to grant access to, and whether you want data destroyed, passed on, or sent to a third party
Putting details of your online life in an actual will is not an option, as they are publicly accessible documents, but highlighting where they can be found is a safer bet. Although with passwords and usernames changing all the time, the challenge is to keep the information up to date.
Digital estate planning, as the process of filing your details with a third party has become known, is an increasingly popular business, and many online services offer much more than simply making arrangements for accessing accounts.
Some, such as My Wonderful Life, allow members to write messages to be sent to their dear ones from beyond the grave. Others, such as the ifidie Facebook app, give people the opportunity to share a posthumous joke, or record a confessional video to be released upon their demise.
Cost of inaction
But it is the more conventional services offered by these companies which are proving vital to grieving families.
Most of the time, families don’t even know which online accounts their relative had signed up to, let alone the login details.
And the cost of not knowing even a simple email password can be enormous, explains Evan Carroll.
“Email serves many purposes, only one of which is the digital equivalent of our mailboxes,” he says. “It is the master key to many other accounts.”
But although leaving a list of your online accounts and passwords with a digital estate service might seem like a good solution, it is riddled with risks.
Putting all your online security details in one place puts you at the mercy of a successful hacking attack. And, as Mr Golding admits, if he received “correct information” from a court of law, requiring him to hand over a list of passwords, he would “have to comply”.
Furthermore, using the login details left by a dead family member is potentially illegal. The terms and conditions of most established online services state that nobody other than the owner is allowed to use the account.
Your loved ones may also not thank you for some posthumous revelations. Details of extra-marital affairs or a gambling addiction, which would otherwise have been taken to the grave, could be made available to mourners.
But although much of the digital will-making process is still being ironed out, Mr Carroll urges people to do something, even if it is just writing a manual list and putting it in a safe place known only to a spouse.
“Many people say ‘I don’t have anything that I care about online’,” he says.
“But you never know what will one day be of value to your family.”
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 –
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.
Hooked on Twitter? Can’t miss a day without tweeting? Soon there might be a way to continue gracing followers with pithy witticisms even after we’re no longer alive. The application, now in beta, is called “LivesOn.” “When your heart stops beating, you’ll keep tweeting,” the LivesOn website home page cheerily proclaims.
Welcome to the world of the “digital afterlife,” a product of the fact that we increasingly live our lives online. With the ubiquity of social media and other forms of online media, we should consider the possibility that our tweets, photos, videos, posts, blogs, likes, pins, tags, online storefronts, email messages and avatars may live on even after we have died, and whether this is what we want.
Cases in the News
A number of well-publicized cases illustrate the negative consequences of not planning what to do with online accounts in the event of an untimely death. Take the case of Lance Corporal Justin Ellsworth, who was killed at the age of 20 in 2004 by a roadside bomb while deployed in Iraq. His father John Ellsworth wanted to create a memorial to his dead son and requested that Yahoo release the e-mails that his son had written while he was on duty. After a legal battle, the following year, a probate court ordered Yahoo to provide the contents of his son’s email account to Ellsworth (see Yahoo releases email of deceased Marine).
The case highlighted the tensions between an ISP’s terms of service, which are designed to protect privacy, and the needs and interests of a grieving family. Other cases have arisen that involve families who want access to the accounts of children who commit suicide or who pass away due to illness.
Why You Should Care
Digital estate planning can help prevent, or at least mitigate, the painful consequences of situations such as those encountered by the Ellsworth family. Without digital estate planning, your survivors will have to guess at what your wishes might have been. Well-meaning family members, if they have the technical capabilities, may circumvent terms of service and your privacy to access the contents of your digital accounts. Information that you may not have intended others to see may be brought to light. Alternately, valuable online information that you would have wanted your survivors to access may not be accessible and ultimately deleted.
In addition, proper digital estate planning can help prevent your identity from being stolen after you die or become incapacitated. As Gerry Beyer and Kerri Griffin note in their paper, Estate Planning for Digital Assets, “Until authorities update their databases regarding a new death, criminals can open credit cards, apply for jobs under a dead person’s name, and get state identification cards.”
Herding the Legal Cats: The UFADAA
Proper transmission of digital assets after death is an emerging area of law. Currently, the laws and guidelines in the United States on how to handle online accounts and data after death or during incapacitation are incomplete, complex, and conflicting. Fortunately, a recent legal development may help change that. On July 16 in Seattle, the Uniform Law Commission passed the Uniform Fiduciary Access to Digital Assets Act, which governs access to digital assets.
Drafting a successful uniform act that addresses a task that can be emotionally fraught, in the midst of an ever-changing technical and legal landscape, was no small challenge. Among the key challenges that the ULC had to address in drafting the act were: Defining terms that have not been previously defined in any statutes, ensuring compliance with existing federal and state laws that address unauthorized access to digital information (for example, the Stored Communications Act, Computer Fraud and Abuse Act, and The Digital Millennium Copyright Act), providing enough specificity to prevent unnecessarily litigation, and enough generality to allow individuals and courts leeway for evolving interpretation as technology continues to change.
According to a recent ULC press release, “The UFADAA solves the problem using the concept of ‘media neutrality.’ If a fiduciary would have access to a tangible asset, that fiduciary will also have access to a similar type of digital asset.” The uniform act covers four types of fiduciaries:
Personal representatives (also known as executors) of a deceased person’s estate
Conservators (also known as guardians) for a living person
Agents acting under a power of attorney
Trustees of a trust
While the UFADAA would vest fiduciaries with the authority to access, control, or copy digital assets, it would honor the account holder’s intent to keep certain assets private.
Ultimately, after a final review and edit of the UFADAA (anticipated this fall), this uniform act will be finalized and available for consideration and adoption by the states.
What You Can Do Now to Plan Your Digital Estate
In the meantime, you can still develop an effective digital estate plan, in consultation with your attorney. Key steps will include:
Completing a digital asset inventory
Identifying a digital executor and consulting with your attorney
Providing access to your digital assets
Providing instructions on how to administer your digital assets
Granting your digital executor(s) authority to administer your digital estate
Also, it won’t hurt to familiarize yourself with your online service providers’ terms of service and other relevant resources. Key resources that you may want to start with include the following:
You could store the information with one of the online services, in a safe-deposit box, or put it on a CD or flash drive and give to a trusted adviser. But don’t put your login information in your will — wills that go to probate become public record.
2. What do you want to happen?
Next, detail how you want to dispose of each asset. Get specific.
For example, “If I’m dead, memorialize my Facebook, delete my Twitter and LinkedIn, and here’s how to get the cash out of my PayPal,” suggested Jean Gordon Carter, an estate-plan attorney and partner at Hunton & Williams LLP in Raleigh, NC.
Keep in mind that your wishes may run afoul of the service provider’s policies, depending on the terms of service associated with each account — terms which, by the way, can change at any time. The best you can do is leave a detailed digital estate plan, and hope for the best.
In some cases, account deletion may be the default option. For example, Yahoo’s current terms of service for email accounts says: “You agree that your Yahoo account is nontransferable and any rights to your Yahoo ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.”
If that’s precisely what you’d like to have happen — maybe your emails are not for your family’s eyes — then don’t provide your password for that account in your estate plan, and note that you’d like that account deleted without being read.
3. Consider any estate-management tools offered by the company
Email service providers and others have started to change their policies in response to the complexities of dealing with digital assets after an account owner’s death. Some email providers, for example, may provide an estate’s executor with a copy of the decedent’s emails (it’s unlikely that they’ll provide the username and password).
For its part, Facebook will delete an account or allow the user’s timeline to be memorialized once it receives proof of death and proof of the relationship between the decedent and the person making the request. Read more here.
“If your mom has no idea what Facebook is, you don’t want her going in and trying to handle it.”
In April, Google announced its Inactive Account Manager, which will contact your chosen representative if your account goes inactive for a specified period. If you have any type of Google account — Gmail, Picasa, Blogger, etc. — then consider opting into this service .
“Although it is cumbersome to have to deal with each provider separately, where they do offer the mechanism, it’s the easiest way to deal with what you want to have happen after your death,” Klein said.
4. Designate a digital executor
Pick a trusted friend or relative to handle your digital assets after you die. This person could be your main executor, or someone else.
“If your mom has no idea what Facebook is, you don’t want her going in and trying to handle it. In some cases, it might make sense to name a different fiduciary for that role,” Gerson said. “You can name two executors and say one has ‘limited power to handle my digital assets.’”
Get specific: Name the person, and name each account for which you name them as an authorized user.
Your will can state that you give your executor the authority “to manipulate, maintain, delete — whatever you like — my digital assets,’” Carter said.
Naming such a person is no guarantee. “Whether that works perfectly if there is a terms of service agreement that conflicts with that, that’s unclear, but it’s certainly better to be proactive and nominate someone,” Klein said. “Then that person has the ability to say, ‘This person authorized me to have access.’ That will certainly facilitate things after death.”
Do you have a vast iTunes library? Maybe some e-books stashed on a Kindle or Nook? Do you sell items on eBay or use PayPal? Bitcoins? Got an online-only bank account? Email and Facebook?
Americans value their digital assets at more than $54,000 on average, according to a 2011 survey conducted for McAfee, a security technology company — but few people take the time create an estate plan for their digital assets.
Without a plan in place, you risk burying your family in red tape as they try to get access to and deal with your online accounts that may have sentimental, practical or monetary value.
If you have, say, a Yahoo email account, your emails might be deleted before your family has a chance to review them. In other cases, maybe your family gains access to emails that you’d rather they didn’t see.
CES 2014: What makes a smart home
It’s not quite flying cars but SmartThings aims to make your home more Jetsons-like. At CES 2014, SmartThings CEO Alex Hawkinson spoke with WSJ’s Joanna Stern about the connected home.
Or, maybe you’ve been blogging for years, and your family wants to maintain your online writing as a sort of memorial. Without access to the accounts through which you manage that blog, it might be deleted before your family can act, or spammers might take over the comments section.
These are the sorts of problems that a digital estate plan — one that details your online assets — can help prevent. Keep in mind that, given the legal complexities, a digital estate plan won’t guarantee your wishes are met. But it will help your executor as he or she attempts to manage and distribute your assets.
And it’s not only an issue of family photos and other sentimental assets. If you have an online-only bank account or a PayPal account, your executor may never know about that account if not for your digital estate plan. And what if you have a fortune in Bitcoins on your computer?
But divvying up your online assets is complicated: These accounts often are governed by the terms-of-service agreement to which you agreed upon opening the account. Often, service providers have created those agreements to comply with federal laws that limit access to account information to authorized users.
Plus, most state laws don’t offer specific support to executors in taking control of digital assets. Even where such laws exist, they are often well behind the reality of today’s technology. (The Uniform Law Commission, a nonprofit that drafts model legislation for states to adopt, is in the process of drafting a proposed law on digital assets — a Uniform Fiduciary Access to Digital Assets Act — but there is no guarantee states will adopt the legislation.)
Given the legal realities, creating a digital estate plan won’t fully guarantee your wishes are met after you die.
“It makes for a pretty convoluted state of affairs. I don’t know that there is a perfect comprehensive solution,” said Sharon Klein, managing director of family office services and wealth strategies at Wilmington Trust, in New York.
There are services such as Family Archival Solutions, PasswordBox (which includes Legacy Locker) and SecureSafe, among others, that aim to offer easy online solutions to the digital-asset conundrum — from full-service estate plans for your online accounts to simple password-management solutions.
But such services come with their own set of challenges. Will the company still be around when you die? Will its encryption methods fall prey to scammers? In the end, you’ll have to decide whether an online solution, an encrypted file on your home computer or simple pen-and-paper work best for you.
1. Make an inventory
First, make a list of your online accounts so your executor knows about your online assets.
Keep in mind that allowing just anyone to log into your account could be a violation of the terms of service. But an executor acting in the best interests of the estate and as per the terms of your will is unlikely to run into problems.
(Read more below on designating a “digital executor.”)
The estate’s executor or representative “has a duty to inventory your estate, locate and ascertain creditors and ultimately pay creditors and distribute assets to your beneficiaries,” Gerson said. “Your digital accounts are part of your estate.”
Your inventory should include login IDs and passwords. “It’s no good just knowing about the accounts if you can’t get access,” Klein said. “Be vigilant about keeping that updated and storing it in a safe, private, secure location.”