Digital Legacy Association urges hospices to support patients in managing their digital estate

United Kingdom: Leaving A Digital Legacy In Your Will

On 16 April 2014, the Law Society published a press release encouraging testators to leave a list of their online accounts, such as email, banking, investments and social networking sites like Twitter, as part of their arrangements on death. Leaving specific wishes as to what should happen to such digital assets is something that we at Wedlake Bell have promoted for some time, and forms part of the standard information we discuss with clients when they make their Will.

Whilst we encourage clients to list their digital assets, regrettably the law as to how such items pass on death is far from clear. It largely depends on the type of account and service provider as to whether loved ones can access your account after you die. However, Google is one of the service providers that has addressed the issue. It was announced on 11 April 2013 that Google users can specify which of their “trusted contacts” can access their accounts after they die, or alternatively to direct that their accounts be deleted. The wishes will be implemented after a fixed period of inactivity (a minimum period of three months). The wishes are set up through the “settings” option for the relevant account and effectively allow users to create an online Will. The tool applies to Google-run accounts such as Gmail, YouTube and web album Picasa.

Unfortunately, accessing online accounts after death remains a problem with many other service providers, as highlighted in the case of Benjamin Stassen in the United States of America.

The Case of Benjamin Stassen

Benjamin Stassen committed suicide in late 2010 without leaving a note.  As personal representatives of his estate, his parents sought access to his online records for an explanation as to why he committed suicide.  They contacted Google and Facebook asking the companies to release their son’s passwords so that they could access his Gmail and Facebook accounts.  Google complied but for months Facebook refused on the grounds of privacy. It was only after the Stassens threatened further legal action that Facebook allowed them access, and even then it was on the basis that the Stassens did not share the content with third parties. Facebook made clear that they were making a unique exception and their policy remains that a user’s account cannot be accessed by their heirs after death.

Most online service providers bind users by their terms of business.  Personal representatives can close a Facebook account or turn it into a ”memorial page” but under their terms of business, cannot access it.

Benjamin Stassen’s parents obtained a Court Order forcing Google and Facebook to give them access to their son’s records.  Google complied with the Court Order.  However, whilst the Order released Facebook from their duty of client confidentiality, the company is standing by its policy of not allowing personal representatives access to accounts, and so far as we are aware, has continued to deny the Stassens access to their son’s account.

Personal Data

You can see why Facebook did not want to grant Benjamin’s parents access to his personal data.  The law in relation to privacy is a tricky one.  The law in the US is, of course, different to the law in England and Wales.  In England there is no specific law about privacy.  Article 8 of the Human Rights Act 1998 is often cited by celebrities in relation to a breach of privacy, but this only applies to state bodies and not individuals and there is no specific case law about the release of personal data to executors or personal representatives.

Online Assets

The emergence of cloud computing has led to assets being stored on remote servers which may be located in jurisdictions outside the UK. For example, Apple’s i-Cloud which stores music, films, TV and any other downloads made by a user together with e-mails and personal data.  Apple’s policy is to delete all e-mail and data from i-Cloud following the death of a user.  However all content downloaded on its i-Tunes service is subject to a licence which can be revoked on a user’s death. It is not clear how Apple will treat downloaded content following a user’s death but it seems that they would have the right to revoke the user’s licence and delete potentially valuable content.

As digital assets are not tangible property it seems unlikely that a person could bequeath their online music collection to beneficiaries in their Will in the same way as they would could leave, for example, their C.D. collection. This is because the C.D. collection is a physical object which can be left in a Will whereas digital assets are not defined by law in the same way.

Clearly the law in this area has not yet caught up with technology.  However, enterprising companies have exploited the gap in the market for bequeathing digital assets.  For example, Legacy Locker allows people to store online passwords so that executors and personal representatives can access online accounts following their death.

Creating an inheritance for your digital assets and data

The best way to deal with online assets and personal data is to leave specific instructions as part of your Will detailing the online accounts you own and granting your executors access after your death. As a Will becomes a public document after death, it is not wise to include this information in the Will itself; however, a Letter of Wishes, which is a personal document to executors, could be written listing online accounts and how the executors can access those assets, together with specific wishes in relation to each account (e.g. whether it should it be closed, or access given to a named beneficiary). In addition, those who have Google-run accounts should also update their settings for the relevant account to mirror the same wishes in case there are any problems with beneficiaries accessing the accounts with the details given in the Letter of Wishes.

If a user has especially important online assets or data, such as valuable emails or photos, it would also be wise to create a hardcopy of these or save them to a disk or memory stick. Hardcopies can pass under a Will as physical property and will pass to whoever inherits the user’s personal effects (or the user can name a specific person to inherit them).

However notwithstanding these steps, executors are at the mercy of service providers and problems may be encountered if service providers do not recognise the consents given in a Letter of Wishes. There may also be jurisdictional issues at stake. However, for the present (or at least until other service providers follow Google’s example or a test case is taken), setting out express instructions in a Letter if Wishes gives the user the best chance of enabling his loved ones to inherit his personal digital effects.

What is Digital Estate Planning and Why Do I Need it?

Estate planning for digital assets: still only prudent planning

We all use digital devices with associated media every day. The result is we have created our own digital history or ‘digital assets’.  The important question with digital assets, as with other assets, is what happens to those assets in the event of incapacity or death?  Failure to plan for incapacity or death can pose risks for digital assets.  In this bulletin, we explore why and how estate planning for digital assets is simply another part of prudent planning.

What are digital assets?

Digital assets include all your online accounts and hard storage devices that contain data which can be both personal and financial information.  Online accounts include social networking, email, cloud storage, pay pal accounts or other financial accounts.  Hard storage devices include laptops, desktops and external storage drives locked by encryption.

Risks minimised by prudent planning

It is prudent to plan what to do with your digital assets in the event of incapacity or death so you may minimise certain risks, including;

  • The prevention of required asset transfers to family members who may not have access to or awareness of your digital assets.
  • Identity theft after death which may jeopardise digital assets or lead to loss for estate beneficiaries.
  • Issues with social media, including pages being defaced and awkward invitations to a deceased person because of a continuing online presence.

Planning for incapacity

The most commonly suggested plan is to create a digital inventory of all your assets with the usernames, passwords and secret questions, to allow easy access to your information by a nominated person.

Although there are numerous internet sites already offering online inventories or registers, it could however be simply and easily created as a digital document stored on a USB or as a hardcopy.

The inventory should list all your digital assets with their respective access details.  It should be stored in a secure place.  Secure places include a bank deposit box, your lawyer’s safe custody room or with a commercial service provider such as security safe or legacy locker, who store data and allow access to nominated persons.  The inventory should be kept secret so that only the nominated person can have access to it. Therefore, it should be kept in a sealed envelope.

However, creating an inventory does have one limitation; the inventory may need to be updated regularly, as some accounts require passwords to be changed periodically.  For these accounts it would be prudent to back up any information on to hard storage if possible in the event the inventory is not updated.

The most important part of planning for incapacity is to sign an enduring power of attorney.  This will allow you to appoint someone that you trust who is ‘tech savvy’ to deal with your digital assets effectively and properly.  The power of attorney document can also include specific provisions that allow your attorney (as far as possible) to manage and deal with your digital assets.

Planning for death

Part of your estate planning should be to deal with the transfer of the access details to your digital assets.  Your Will may include a clause that will give power to your executor to handle and manage your digital assets in accordance with the terms of your Will.

Your executor should also have an inventory of your digital assets so the executor knows what assets exist.  The inventory should remain separate from the Will in a sealed envelope because of the sensitive nature of the information.  The inventory should be updated and re-sealed as required.

It is important to keep in mind that despite appropriate Will powers, executors may still be limited in what they can do with some digital assets.  Providers of online accounts require users to accept their terms of use agreements that determine ownership and authority of the information in user accounts.  In most cases, users do not own the uploaded information or associated rights to that information.  In addition, the providers may refuse access to an executor or next of kin.

Some providers offer after life options.  For example, Facebook has a memorial feature allowing friends and families to request that a deceased account become effectively frozen.  Google has launched “Inactive Account Manager” allowing users to provide Google with specific instructions about what to do with their data when they die.  The majority of social media and financial providers do not offer after life options with their online accounts.

Also, online digital assets (except website domains) are not the same as the assets that form part of your estate.  These assets are not a form of personal property that a court can order to be transferred like physical property, because there is no current law in NSW that governs them.  Therefore, in order to minimise the associated risks it is prudent that you consider digital estate planning.

Conclusion

The law is still developing and changing in this area.  Modern forms of wealth and asset ownership will continue to change and evolve.  It is only prudent estate planning to consider and attempt to deal with all your assets in any shape or form in the event of your incapacity or death.

Texts from the dead: Post-mortem digital communication has arrived

What happens in the digital afterlife?

Dying in the digital age means leaving two worlds instead of one.

One is the physical world, where your body resides. The other is the online world, where your virtual self exists. When you die, your loved ones become responsible for both — yet they have very few tools to take proper care of the online “you.”

This is a growing problem nationally and in Oregon, as older citizens become more Internet-savvy and people of all ages conduct more of their personal and financial business online. Oregon lawmakers should be prepared to tackle this issue in 2015, with help from privacy advocates and estate attorneys: Our laws are ill-equipped to deal with the tricky reality of gaining access to others’ Facebook accounts, family photos stored in the cloud, and even password-protected phones.

Last week, a leading group of lawyers recommended that states adopt several proposals to make it easier for surviving family members and executors of estates to gain access to your digital assets when you die. This group, known as the Uniform Law Commission, says electronic documents should be treated much like paper documents in a file cabinet. In most cases, a surviving loved one or executor should get easy access without having to petition a judge or jump through months of hoops.

Same goes for photos and files that might be stored online: Unless the person specified otherwise in a will, trust or user opt-in agreement, that person’s digital assets should be as accessible as their physical property, the group says.

“Technology is creating these assets on a daily basis, and the law is woefully behind,” said former state lawmaker Lane Shetterly, an Oregon attorney who served on the workgroup that hammered out the recommendations. The group’s intent is to establish good public policy around better access, he explained, while also carving out ways for people to protect their online privacy, even in death.

“This is a balancing act,” Shetterly told The Oregonian editorial board on Tuesday.

Digital privacy is emerging as a hot topic for the 2015 legislative session, and dealing with the digital assets of a deceased person is likely to be part of the mix. Oregon lawmakers may be surprised to discover that many of the same Internet companies that seem awfully casual about users’ privacy are often the most reluctant to share account information with surviving loved ones, both because of company policies and competing federal laws.

Oregonians may find themselves debating surreal questions such as: How can we keep a virtual self out of legal purgatory? How should we define a good digital death?

This would have sounded like gibberish five years ago. Now, it’s a natural extension of living with our heads — and a good part of our souls — in the digital cloud.