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Who inherits your iTunes library?

Digital assets in wills

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Digital assets in wills

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The use of digital platforms such as online banking, Paypal, gaming accounts, Bitcoin accounts, cloud accounts to store photographs, and social media accounts such as Facebook and Instagram continues to grow and is creating a new category of personal property – a ‘digital asset’ which is broadly defined as anything that you may own or have rights to that exists online or on a hard storage device.

Many of these digital assets have financial or sentimental value and people must ensure that their personal representatives know about the assets and can access them to administer their estates on their deaths.

The current situation for digital asset holders

Currently, English law does not adequately deal with what happens to these assets on the death of the account holder. The duties of the Internet Service Providers (ISPs) post death, as the custodians of the assets, are not clear. Further complicating matters is the fact that many of the content providers’ servers are based outside the UK, so there is nothing to compel the content providers to give personal representatives access to the assets and the area could become entrenched in conflicts of international succession laws.

The main basis for the content providers refusing access to digital assets is that in most cases, the underlying content of the digital asset is not owned by the individual. The view of most ISPs is that the service that the individual has purchased is merely a personal, non-transferable licence, which is specific to the deceased individual and allows them to use the content during their lifetime. A typical example: music purchased on iTunes cannot be transferred by gift or on death.

Each content providers’ terms and conditions will dictate what happens to those assets on the death of the account holder, and how much access the personal representatives will have in order to administer that asset. Most of these terms and conditions forbid the sharing of any online content, such as by way of a bequest in a will.

However, for those digital assets which are capable of being bequeathed in a will, the potential for loss to an estate if they are overlooked means that it is crucial for people to consider what will happen to them on their death, and whether their personal representatives will even have knowledge of them. Typically, individual assets are not be specified in a will, and personal representatives rely on a paper trail or their knowledge of the deceased’s assets in order to administer the estate.

Digital assets, which could have enormous value, are easier to overlook. For example, the Bitcoin, a virtual asset that can have substantial financial value, is saved in a password protected digital ‘wallet’. If the wallet, the password or the device on which the wallet is stored are lost, the asset, and its value, is lost permanently.

What should I do?

It is not advisable to leave passwords or information about your digital assets within a will. There are a number of services which will keep a secure record of your assets within a ‘virtual safe’, but the use of these portals is not without risk or cost.

A better alternative would be to leave a detailed log of your digital and non-digital assets to be stored alongside a will. This should be updated regularly, and will be made available to the executors on death to provide them with the information they need to administer and access these assets, or to contact the content providers where the terms and conditions prohibit a personal representative from accessing someone else’s account.

It is also advisable to regularly download any items of sentimental value such as photographs or emails. The executors will then be able to access the accounts and retrieve photographs or other sentimental items, or to report and collect in assets of financial value, before closing the accounts down, or requesting that the content provider closes them. It is also interesting to explore going forward what the scenario is when a digital intangible asset is stored on a tangible physical device, such as a hard drive.

You may recall the significant loss to one unwitting digital entrepreneur who discarded a digital storage device in clearing out his room in Newport, South Wales. The device contained some of the first bitcoins ever developed and in the sharp rise of this new currency the mishap ultimately caused the poor chap to throw away £4.5m into a land fill site!

The future of digital assets

Clearly as this area grows, the definition of ‘asset’ will need expanding to reflect an ever digitalised population and the increasing value which these assets hold; content providers will need to address the issue of how these assets can be accessed by the personal representatives and any value preserved for the estate.

For more information or guidance, please contact:

Celia Speller
Solicitor
T. 020 7227 6719
E. celia.speller@rlb-law.com

Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accept no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommend that appropriate legal advice be taken having regard to a client’s own particular circumstances.

Do your clients safeguard digital assets?

Do your clients safeguard digital assets?

Eleanore

ur clients safeguard digital assets?

Funeral Directors
Sara Cork 24 hours ago Technology/Equipment

Do your clients use social media, PayPal or online banking? Mike Jarvis asks how to safeguard digital assets after death

One result of living in the computer age is that we have learnt much about paradoxes; remember the promise of the paperless office? Ah, we are told, but everything is at your fingertips. Well it would be if nothing ever crashed, if we made scrupulous back-ups, and if only we had started out with a faultless system of folders and our spam filters didn’t suddenly develop prejudices of their own.

‘Chin up’, say the gurus, ‘our lives have been made easier’. Of course there is a lot of truth in that, but the other side of the coin is the possibility of a new problem after death: what about the digital legacy?

I remember discussing this with a private client lawyer in London several years ago and he was very concerned about problems which might, and probably would, arise. Since then the social media scene has grown at a rate and to a size beyond our imagination and there has been a similar enthusiastic take-up of a variety of financial services including online banking.

At first glance it might seem that there is little in the way of any possible connection between these developments and the funeral industry but a closer inspection will show how a knowledge of the inherent pitfalls and the resources that are available to help will be valuable.

At any time when a funeral director is in contact with the public in a professional capacity but outside the context of an immediate funeral (when arranging a funeral plan, or at a Dying Matters Awareness event, for example) there is the possibility that questions regarding this topic will be raised.

What are the problems, then?

Gary Rycroft, a solicitor who is Chair of the Law Society’s Private Client Advisory Committee, identifies four main areas:

  1. Online financial dealings – not just online banking, but eBay, PayPal, share dealing accounts and so on.
  2. Documents on a hard disk or in the cloud with web-based services which might have a potential commercial value.
  3. Digital assets with social value such as Twitter, Facebook and LinkedIn.
  4. Digital assets with sentimental value such as Flickr, YouTube and iTunes.

For advice as to how potential problems can be avoided, and resources that the funeral industry should know about, I have had detailed and illuminating conversations with Gary Rycroft and with James Norris of the Digital Legacy Association.

The Digital Legacy Association provides frameworks, training, promotes best practice, and raises awareness as to how each person can plan for death digitally. Their goal is to ensure that everyone is aware of what will happen to their digital footprint and their digital assets when they die. They strive to empower both professionals and society to take the relevant steps to ensure that each person’s wishes are adhered. Lack of awareness and planning often results in beneficiaries and the recently bereaved losing access to digital photos, videos and other digital assets like music, videos and eBooks.

Gary’s recommendation regarding financial assets is to make a digital directory that contains details of all of your online assets, social media accounts, logins and passwords. “It should be regularly updated”, he says. “This will allow your executors to be able to trace your assets and pass them on to your beneficiaries. This can be held securely with your solicitor.” The second point above relates to intellectual property and will be less common but the legal profession is well aware of instances where material like this has been overlooked by, or unknown to executors only for it to acquire commercial value at a later date. Anything of this nature should prudently be included in the digital directory.

Social media

James Norris of the Digital Legacy Association founded Dead Social, a social enterprise specialising in digital end of life planning. It provides independent tutorials, tools and resources to help empower society when addressing death in today’s digital world. All the tutorials and products it puts into the public domain are free.

James’s main recommendation regarding social media presence, the third point above, is the writing of a social media will and the appointment of an appropriate social media executor, a recommendation that is endorsed by the Law Society. The good news is that it need not be daunting as the Dead Social website gives access to comprehensive guidance and well thought-out templates. As well as ensuring the continuance of an online archive, the user can leave private messages to be sent after death via their digital executor. It’s all very well researched and simple to follow.

The last of the four main points, concerning digital assets such as Flickr, YouTube and iTunes, takes us back a step to good old fashioned hard copies. Both Gary and James agree that these sentimental downloads have the potential to be very problematic as they will have been accessed by way of licence agreements. In other words they can’t simply be passed on like a book or painting. One does not have the legal right to pass them on to chosen beneficiaries. As James says “take practical steps such as making sure you have back ups or hard copies of items you want beneficiaries to access after your death”. Gary agrees and adds “remember you should also list them in a digital directory”.

Dealing with digital legacies may seem to involve some complexities but it is very encouraging to see a range of helpful resource material so readily available. Here are some useful links:

  • The Law Society – lawsociety.org.uk
  • Gary Rycroft is a partner with Joseph A. Jones & Co of Lancaster – jajsolicitors.co.uk
  • James Norris runs Dead Social – deadsocial.org and The Digital Legacy Association – digitallegacyassociation.org
  • Mike Jarvis can be contacted at emdoublejay@icloud.com

Mike Jarvis, the author of this article, is a former manager of the Natural Death Centre. He has both written and broadcast extensively on funerary issues.

Providing for your Pokémon in your Will Blog Defending Professionals Law Blog

Providing for your Pokémon in your Will

Eleanore

Everyone is talking about Pokémon Go but no one is asking the most important question of all – what happens to your Pokémon when you die?

Pokémon Go is a smartphone game which has been downloaded over 7.5 million times and has added £5.4 billion to the value of Nintendo. Until this week, it was only available in the USA, Australia and New Zealand. But as of 13 July 2016 for Android users (and 14 July for iPhone users) it is available in the UK.

The aim is to walk around the real world catching adorable virtual monsters. There are 250 to collect and some, such as the iconic yellow Pikachu, are particularly sought-after. It is therefore possible to build up a desirable collection, arguably on a par with a stamp or coin collection.

In fact, what you could end up with is a valuable “digital asset” which you may wish to pass down to your loved ones on your death.

More and more people are thinking about their digital assets when they make their Will. Some of these assets have financial value, such as PayPal accounts and bitcoins; others have sentimental value, such a photos or emails. There are also issues of privacy and identity theft.

In June 2016, STEP (the Society of Trust and Estate Practitioners) published new guidance for the public and professionals about digital assets.
So, what should you do to protect your digital legacy?

  1. Make a list of all your digital assets so that, on your death, the person dealing with your estate knows what they are and where to find them;
  2. Appoint someone you trust to deal with these assets on your death and make sure they know what you want them to do, for example which assets they should preserve and which they should destroy;
  3. Make sure that whoever is dealing with your digital assets is able to access them, for example by ensuring they have the passwords; and
  4. Do your research to make sure you know what the providers of all your digital assets will need your representative to do and make sure you give them clear guidance. Make sure that the language you use to appoint your representative will work for each provider.
Have You Protected your Blog with a Digital Will?

Have You Protected your Blog with a Digital Will?

Eleanore

When the Centre for Creative and Social Technology at the London University surveyed 2000 adults, they were surprised to learn that 10% of the respondents had mentioned their online passwords in their wills.

The “Cloud Generation” report quotes Steven Thorpe, a partner at the Gardner Thorpe law firm, who says:

Digital inheritance in an area that will become increasingly important given, for instance, the monetary value of music collections and sentimental value of photograph collections. Fewer people now keep hard copies of either, and a very real danger is that the valuable contents of private cloud accounts will simply be lost upon the owner’s death either because the accounts are not known about by others or because access is not possible without the user and password details.

Why do you need a Digital Will?

  • To safeguard your online life.
  • To ensure that a chosen person has access to them after your death.
  • To prevent people with malicious interests from accessing your accounts.
  • To ensure that your business, if any, continues or is shared equally by designated people.

Is there any Fixed Age for Making the Digital Will?

No, whether you are 80 years or just 21 years old, if you think whatever you have online is valuable, get the digital will done.

Does every Country Recognize this Will?

No, I am afraid not every country recognizes this digital will yet.

For instance, UK law does not have any provision for this will; however, it does not mean you should take it lightly. Digital wills are important and people are learning about its importance.

Even if your country doesn’t recognize digital wills as a legal entity, you should be prepared for it in advance.

7 Recommended Digital Will Service Providers

I searched a lot online and created this list of digital will developers. All of them are legal entities and entrusted to carry out the creation of digital wills. The list mentions their features. Visit each of these sites and choose one that suits your requirements.

Founded in 2006, Death Switch emails your appointees when it stops hearing from you. The free account allows the company to send one email to the appointee without any attachments while the paid account allows you to add 10 appointees and attachment facility.

The Cirrus Legacy digital will allows you to specify which online properties are to be stored and transferred to successor/s in the event of your death. The free account has no storage facility while the paid options allow storage of digital files and documents.

Founded in 2013, After Note is a combination of digital will and a ‘bucket list’ where you can store information for a maximum of 3 trustees, and create wishes and special messages for loved ones, to be delivered after you die.

Founded in 2010, After Steps is an “all-in-one end-of-life” planning services which includes guiding you with estate planning, financial planning, funeral planning and legacy planning. All the information and documents are stored securely and transferred to beneficiaries.

Founded in 2012, After Words is a method to leave posthumous messages to anyone you want, which is a great way to secure online business properties. You can message people or groups. You have to invite two or more account trustees who will operate and execute your instructions once you are gone. Not only posthumous messages, the service works if you take ill suddenly or due to any disease which renders you immobile to work actively.

Founded in 2009, Best Bequest is an award-winning safe deposit box whose Legacy Vault helps to create roadmaps for trustees or benefactors to follow after you pass away or in instances of natural disasters. You can store keepsake photos, insurance policies, digital will, account passwords, financial information and more. The account is protected with 256-bit AES encryption.

Founded in 2013, Capsoole protects your digital life and legacy through your digital will. It stores your digital information and assets to be shared in case of emergency or your death. The service is fully automated, secure and private.

What does the Digital Will Contain?

The digital will contains all your information like email accounts, social networks, PayPal details, AdSense, stocks and shares, iTunes, Kindle,hosting companies, website designing, databases and others.

Anything that you access with a username and a password needs to be included in the digital will.

You can also store electronic documents like passport, share certificates, birth certificate, marriage certificates, educational certificates and any other document worth storing.

How will the Successor Know?

No matter which digital legacy service provider you choose, make sure that the appointed successor knows about it.

In the event of your death, the appointed successor will contact the digital legacy service provider and start the mandatory rights transfer process.

In fact, I will go on record to state that even before you think of creating an online property, get started with creating a digital will first.

Who will get your iTunes when you die?

An electronic immortality

Eleanore

Human fascination with immortality stretches back to the time of Greek mythology with history littered by charlatans, oddballs and megalomaniacs either claiming or seeking the secret to eternal life.

However, the modern tech-savvy generation has discovered, quite by chance, that an immortality of sorts is now freely available via the digital footprint they leave should they meet an untimely end.  It’s estimated that on Facebook alone, more than 30 million accounts belong to people who are deceased.

As if the pain of coping with the death of a loved one isn’t difficult enough, friends and family must now consider the implications of the deceased’s online life to go with their material existence.

Your online footprint
Think for a moment about your own digital presence.  You’ll almost certainly use online banking and shopping facilities, perhaps an online wallet like PayPal, email accounts, a frequent flyer program, a social media presence via Facebook or Twitter, along with potentially thousands of personal files, receipts and photographs.

Most people already understand the importance of estate planning to help pass on worldly goods such as housing, savings and mementos to their beneficiaries.  But how will your heirs even gain access to your computer and your passwords?

Like so many laws relating to the digital world, many are outdated or irrelevant, and several online services have already established their own policies.  For instance, Twitter allows family or friends to download a copy of your public tweets and close your account.  You need to nominate someone in advance to provide their name and contact details, their relationship to you, your Twitter username and a link to or copy of your obituary.

Digital executors
No laws currently exist in Australia to grant a Will’s executor automatic access to someone’s social media accounts.  However, there are still several options available to help decide on how your online legacy is managed.

The first step is to create a Digital Will.  In addition, you will need to select a trustworthy digital executor to handle arrangements for your digital assets and digital legacy once you are gone.  Similarly, if you run your own business, it will have its own digital incarnation and its own digital legacy to maintain.  Some Australian Will makers offer Digital Wills so people can ensure their online legacy lives on – or fades away – in accordance with their wishes.

Online vaults for safe storage
An increasingly popular alternative is to store important documents and passwords in an online vault.  The likes of SecureSafe, Legacy Lockboxor Assets in Order pledge to provide secure online storage of passwords and documents.

Password management accounts can be set up using software such as Norton Identity Safe while Google recently introduced a new program called Inactive Account Manager, which enables you to choose in advance exactly what you wish to have done with all your Google data – from Gmail accounts to YouTube videos.

Considering how much of our communication takes place online these days, it’s worth investing some time thinking about your digital footprint and what is required to manage it when you’re gone.  A good time to do this might be when next reviewing your Wills and Powers of Attorney.  With a little thought and preparation, you can leave a lasting legacy to your loved ones, well beyond photos or videos, and avoid complications associated with your ‘digital immortality’.