We live in a digital world where traditional assets like photo albums, businesses, marketing materials and financial assets are moving online. Just look around – the most valuable companies in the world are technology companies that do most of their business online. information concept, hands from monitors. pile of […]
You may have decided who gets the house in your last will and testament, but who’s going to wrap up your digital life – from online photo albums to your bitcoin wallet? That’s where the digital will comes in.
By Sonakshi Babbar
Pop culture is obsessed with death. From Netflix zombie series Santa Clarita Diet to an apocalypse in practically every Marvel movie, it seems we can’t get enough of it – from a safe distance, that is.
We don’t like death so much when it applies to ourselves. It’s a topic to politely avoid, and preparation for death is a chore many people leave until it’s too late – leading to feuding children, estate disputes and distraught partners.
Now there’s an extra layer of difficulty to dying. Many of our family heirlooms, mementos and assets are digital. For starters, consider your social media profiles on Facebook, LinkedIn and Twitter; email on Gmail or Outlook; photos and journals on Dropbox or Google Drive; entertainment on Netflix and iTunes; and money in online bank accounts and in cryptocurrency digital wallets.
Researchers at the University of Melbourne have found that few Australians systematically download and store their online content in a format accessible to others after their death, meaning a great deal of the content may be lost to family and friends.
Digital accounts are protected by online privacy laws and terms of service, and these have been interpreted differently in various legal cases. In Germany, parents of a 15-year-old girl who died in a train accident were refused access to her Facebook account. However, in another case, the father of a deceased soldier was given access to his Yahoo email, with the court overriding Yahoo’s privacy policies.
How do we bequeath and divide our digital assets? Does your partner have access to your photos on Facebook to remember you by? Most importantly, what happens to our digital accounts after we die? This is where digital wills are important.
What is a digital will?
A digital will is a document that instructs loved ones on how to manage your digital presence and assets after you’re gone.
State Trustees Victoria recommends preparing a digital register, which is a record of accounts, usernames, passwords and requests for closure of online accounts as outlined in an Australian Communications Consumer Action Network (ACCAN) report titled Death and the Internet. The register may accompany your last will and testament, although the laws around it are still not clear.
The same goes for rules around inheritance of digital assets. Rosemary Caruso, partner, wills and estates at Tindall Gask Bentley Lawyers, says they’re as diverse as the internet itself. The obvious solution would be to add an appendix or a register of your digital assets to your standard will. However, Caruso recommends making the digital will a separate, formal document – signed and duly witnessed.
In terms of what goes into the digital will, it is important to understand what you own, what you license, and whether your digital rights outlive you.
“Each digital asset will usually have its own ownership structure and end user licence agreement [EULA], and the answer may differ for each asset,” Caruso explains.
“One big question is whether you actually own the asset – it might just be a licence during your lifetime, which is not transferable after death.”
Addressing the issue of what to add to the register, Caruso advises listing all your online accounts without passwords, because sharing passwords is prohibited by most organisations. However, you could store digital accounts and passwords in encrypted password management software, accessible by a nominated person only upon your death.
Online platforms such as Everplans and Cake offer people an opportunity to store information and plan what happens to their digital assets after death. Similarly, DigiPulse allows digital wallet users to control who inherits their cryptocurrency assets, which can be a valuable service for investors in bitcoin and other digital currencies.
Is there a social media afterlife?
According to the ACCAN report, 69 per cent of Australians are active social media users, but very few know what happens to their social media profiles after they are gone. They are programmed to live forever. In fact, as of 2014, there were 30 million such profiles still on Facebook alone.
Unfortunately, if left unmonitored, social media profiles of people who have passed away are open to identity theft, trolling and data fraud by hackers.
Most social media platforms do provide options to control what happens to accounts after death. Facebook allows a person to nominate a legacy contact who can look after your account, without having actual account access or posting as you. Alternatively, a family member or friend can submit a request for the deceased person’s profile to be memorialised or closed.
Each social platform and online service provider has its own policy for account closures in the event of death. Simple digital legacy planning can protect your privacy, and remove the burden from your loved ones.
Plan your digital legacy
Google: You can add up to 10 trusted contacts, who will receive an email that bequeaths files stored on a Google service if your account is left unattended between three and 18 months.
Facebook: You may nominate a legacy contact to manage your profile after your death. This could be memorialising the page, or closing it.
Instagram: Provides an option to memorialise an account, which means nobody can log in or change it. To memorialise an account, anyone can provide a link to an obituary or news article reporting the death. You can also request account closure.
Twitter: The only option is to deactivate the profile by submitting a form with information on the deceased, including a death certificate.
LinkedIn: Executors, colleagues or friends of the deceased can notify LinkedIn that someone has passed away, so their account can be closed and the profile removed.
iTunes: Music files, television series and films are licensed, rather than owned, and cannot be bequeathed.
Let’s face it: Your e-mail account, Facebook page and online photo albums are likely to outlive you. Deciding how to manage your digital legacy just may be your trickiest estate-planning task.
As people increasingly live—and die—online, family members and estate executors are left to sift through e-mail messages, Facebook status updates, blog posts, tweets and other digital remains that may have significant financial or personal value. And even if they have all the required passwords, many heirs will find they have no clear authority to access or manage the online accounts of the deceased. A confusing and sometimes contradictory snarl of online user agreements and state and federal laws can restrict Internet users’ ability to transfer their online accounts to loved ones after their death and prevent families from retrieving information stored in the digital realm.
Despite the devilish details, it’s essential to include online accounts in the estate-planning process. Failure to plan ahead may prevent loved ones from recovering family photos or videos or settling your final bills. It also could leave your estate vulnerable to post-mortem identity theft, if fraudsters decide to apply for credit cards in your name while nobody’s watching your accounts.
What’s more, a library of digital music or an Internet domain name that you own may have financial value that’s significant to your estate. The domain name HotelsGuide.com, for example, recently sold for $60,000, according to domain-name marketplace Sedo. “We shouldn’t dismiss our digital assets as insignificant or unimportant,” says Evan Carroll, co-author of Your Digital Afterlife (New Riders, $25). “The things that may seem ephemeral to us are very valuable to heirs once we’re gone.”
The value of these assets can go far beyond the financial worth in the wake of a loved one’s death. After her brother died in 2011, Melinda Miller quickly had his Facebook account “memorialized,” meaning friends can still post messages on his page, but no one can log in to the account. “That first six months, I didn’t know if my parents were going to recover” from the loss, says Miller, 41, an elementary school principal in Springfield, Mo. But as friends have continued to post photos, songs and holiday greetings on her brother’s page, “it’s very comforting to the family to see the messages continue,” she says. “It’s like a memory wall.”
The first step for seniors starting to navigate this new world of digital estate planning is to recognize the obstacles they face. Each online service provider has its own terms of service—the legal mumbo-jumbo you click through when you open your account—and those terms often say that you can’t transfer your account or hand off your password to anyone else. Those restrictions pose a challenge for heirs who might want to access your e-mail account, for example, to retrieve bills and other documents.
Providers differ on how they handle the accounts of deceased users, but some are starting to help users plan their digital afterlife. The Yahoo terms of service, for example, say that “any rights to your Yahoo! ID or contents within your account terminate upon your death,” and accounts may be deleted if a death certificate is submitted. Google in April introduced a new feature allowing users to specify that after a certain period of inactivity their account data should be deleted or passed along to specific individuals. At Facebook, relatives may be able to request the contents of the account—a lengthy process involving a court order—or ask that the page be deleted.
Federal laws present another hurdle. If you use your late mother’s password to log on to her account, you may violate not only the provider’s terms of service but also the federal Computer Fraud and Abuse Act, which governs certain unauthorized access to computers. And a federal privacy law, the Stored Communications Act, can limit providers’ ability to share deceased users’ account contents with relatives.
A handful of states, meanwhile, have passed laws attempting to clarify executors’ power to manage a deceased person’s digital assets. But given the variations in the state laws, federal laws and technology companies’ terms of service, some legal experts say such legislation has done little to remedy the confusion. “It is a very unsettled area” of law, says Gerry Beyer, law professor at Texas Tech University. The Uniform Law Commission, which helps standardize state laws across the U.S. by drafting model legislation, currently has a committee working on the issue.
Some accounts that you access online don’t pose much of an estate-planning challenge. Because financial institutions have clear procedures for handling an account holder’s death, it’s relatively straightforward for executors to arrange for the transfer of assets to beneficiaries, estate planners say.
Protecting Your Digital Afterlife
Although many other online accounts remain in a legal fog, seniors who take a few simple steps now can greatly increase the odds that their online afterlife will be handled according to their wishes.
First, take inventory of all your online accounts, including e-mail, social networks, blogging sites, photo-sharing sites, frequent-flier accounts, shopping sites such as Amazon.com, credit card accounts, and online bill-payment accounts, such as those established with utilities. For each account, list log-in and password information as well as answers to “secret” questions.
The security of such a list is a critical question. One solution: Use a password-management system such as LastPass.com or 1Password (www.agilebits.com). These services will encrypt your log-in and password information and keep it stored on your own computer. You’ll have a master password to unlock the data, so it’s easy to retrieve and update password information. Another option: Save the list in a password-protected document on your computer. Don’t put any password information in your will, which becomes a public document.
When you’ve completed your inventory, write down where you’ve stored the information and the master password needed to access it. Put that information in your safe deposit box or in your attorney’s vault. Seniors creating a power of attorney document should also include specific language authorizing their agents to deal with their digital assets, Beyer says.
Next, consider signing a statement, which can be drafted by an estate-planning lawyer, authorizing the companies that hold your online information to disclose that information to your executor or other representative, says James Lamm, estate-planning attorney at Gray Plant Mooty, in Minneapolis. The authorization may be included in your will. That way, your executor can request a copy of the contents of your online accounts, rather than trying to access the account directly—and possibly running afoul of the terms of service or federal law, Lamm says. “That should work, but I can’t guarantee it,” he says. “That’s as good as we can get under current law.”
Seniors may be able to avoid sticky legal questions by downloading their online account information to a home computer. Some tech companies are making this process easier. Facebook, for example, allows users to get a copy of all of their correspondence with friends, photos and other account content in a single download. A service called Backupify (www.backupify.com) will also help download content from Gmail, Facebook, Twitter and other personal accounts.
A cottage industry of online data-management companies has begun selling services that claim to transfer your digital assets to your beneficiaries. One such service is offered by SecureSafe, launched in 2009 by Zurich-based online storage company DSwiss. It has already signed up more than 300,000 individuals and is adding roughly 10,000 new customers a week, says spokesman Andreas Jacob. But legal experts say such services don’t resolve the potential conflicts with online providers’ terms of service or federal laws. SecureSafe’s terms of service say that users must comply with the laws of their own country, Jacob says.
Even when family members have shared all their passwords with each other, managing online accounts can be difficult. Karen Marcus, 39, of Richmond, Va., had all of her husband’s passwords when he died in 2010, but she didn’t have all of the log-in IDs he used for online bill payments. She tried to convert the online bills back to paper statements, which wasn’t an easy process. Her electricity was turned off, she says, after the power company was slow to send her the paper bill that she had requested. But when dealing with such a loss, she says, “you don’t know what day it is, what time it is. And you want to make things as simple, as tactile, as possible.”
Digital Estate Planning Part 2: Taking Inventory
The first part of any estate plan is to take inventory. Things like filing cabinets, photo albums, boxes of memorable nick-nacks, and safes make most of our tangible estate easy to find. Even when filing cabinets and safes are locked there is usually a key somewhere.
Conversely, it can be difficult for surviving relatives to locate or access digital accounts or files that are scattered across several computers, folders, and backup devices.
Many of us have an old computer collecting dust in a closet somewhere that may still contain photos, videos, music, important financial documents, or other digital assets.
To make this process easier on your survivors, digital estate planning begins with making a list of all your digital assets:
Hardware: Include your computers, tablets, iPods, laptops, flash drives, external hard drives, or any other device that contains digital files that are of importance to you. It is also helpful to include a brief summary of what each device contains.
Software: If you used any financial programs like Quickbooks, Quicken, or other tax programs that contain important information include them in the digital assets list.
Subscriptions: Many people rely entirely on web accounts for the management of subscriptions to phone, television, internet, finance and other services.
Social Media Accounts: Facebook, LinkedIn, Twitter, Blogspot, Google+, or any other forums or profiles where you have an online presence.
Shopping Accounts: Shopping websites make it easy to create an account and in many cases people opt for no longer be receiving paper statements. Without a paper trail it is difficult for your heirs to locate these accounts.
Email Accounts:Most people have more than one email address. Each account may have a different set of digital assets. It is important to include an overview of what each email account contains and if there are any important emails to keep.
Work:Make a list of collaboration sites, client sites, Dropbox accounts, databases or other file sharing programs.
Medical/Financial:List any sites that include you confidential medical or financial information. Banks, investment accounts, 401K statement sites, insurance, government assistance sites, automatic prescription refill and any other website that contains sensitive information.
Once you have made a list of the assets in your digital estate, print the document and keep it somewhere safe, yet accessible to your friends or family in the event of your sudden demise, with a copy to your estate planning attorney.