Legacy Tips #5-10: 5 ways to make sure your digital life is not locked up online (podcast)

facebook_digital_afterlife_what_happens_when_someone_diesAway For A Bit spoke with Damien Carrick on ABC Radio National on legal and practical considerations for managing a digital afterlife and legacy.

Gaining access to an individual’s online accounts (social networking, email) after they die is often impossible, although in some cases, next of kin have fought for access via the courts. As the podcast demonstrates, they do not always win.

Here are five recommendations from the podcast to avoid your digital life from being locked up online.

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If a will is drafted on a mobile phone, is it valid? Not likely say US estate advisers…

digital afterlife or legacy on phone

“Michal Zacharzewski, SXC”

A recent court ruling in Queensland, Australia determined that a will that had been drafted on an iPhone was valid. This prompted IT Law Firm IdeaLaw to ask, could wills drafted on social media and in other informal scenarios be deemed as legally valid in the future?*

While it has been suggested as a possibility in Australia, this feature attracted some interesting feedback from legal and estate planning representatives in the US who indicated that this would depend on the state. However, in mentioned cases it was considered unlikely – at least, for the foreseeable future.

“For the US, that will depend on each state’s laws,” replied Jeff Dundon, Director, Gift Planning at UC Foundation. “It would not be considered a holographic will in Ohio and does not meet the requirements of written signed by testator and at least two independent witnesses. A statutory change could make it possible but I can foresee a lot of issues and contests for a ‘smart phone’ will.”

Reeve Chudd, Partner, Ervin, Cohen & Jessup added, “Not in California. We only have two types of Wills — (a) signed by the testator and witnessed by at least two independent witnesses, and (b) entirely in the testator’s handwriting which is signed and dated (holographic Will). Video Wills don’t work either.”

Dave Towers, a Gift Planning Officer at Victoria Hospital Foundation in Canada had the final say however, referring to a recent anniversary of a will drafted in extraordinary circumstances over 60 years ago. He pointed to a farmer’s last wishes that he etched onto the fender of a tractor after it fell on him during an accident. These were later accepted by a court in Saskatchewan.

A judge at the time ordered the fender portion of the tractor to be cut off and it has been displayed under a piece of glass in the Saskatchewan Law College Library ever since.

*IdeaLaw’s full analysis: “Can a document on a smartphone be a valid will?”

Legacy Tips: how to preserve your digital life and memories

Legacy tips - preserving digital life & memoriesThink forward 100 years in time. How would you like to be remembered by your family of the future? What is the lasting legacy that you want to leave behind within your communities? Are there memories you’d like to pass on as a record of how you lived and what you experienced? Traditions you’d like to share?

For some people, the value of legacy is sharing words of wisdom from experiences they’ve gained through the course of their life. One reader recently wrote to me about how he is digitising photos and correspondence that he’d received from his parents following the death of his father.

“Death erases people,” he told me. “I don’t want my Dad to be erased. There are lessons that he taught me that I want to pass on to my children for them to pass on in turn to theirs if they choose. A good start is having those recorded somewhere.”

The reality is much of our correspondence and memories — including photos –are tied up in email, social channels and across myriad online accounts. According to a recent survey, three quarters of Brits believe that physical letters and notes are the most heartfelt way to communicate but the reality is that we mostly communicate online these days, our histories now often guarded behind walls that we have to sign up to and into. And these digital assets are subject to different legal ownership rules that often digress from the laws we apply to dealing with our physical property.

Over the next few weeks, Away For A Bit will post a series of 50 Legacy Tips, short features that will provide practical guidance on how to archive and preserve your important online memories and history for future generations and for yourself so that these are not lost to the fast paced changes of the digital service industry. If you have any questions or suggestions for the series, drop a line to emily@awayforabit.com.

Away For A Bit on ABC7.30 – What happens to your online accounts after you die?

Watch this ABC report which explores the digital afterlife, offering an initial look at emotional, practical and legal aspects to consider when managing an online estate.

abc_730_online_accounts_when_you_die“…it’s very important to be considering things like digital wills, which might be an extension of what you’re doing already if you’re managing your estate and speaking to a legal advisor. It also means that the next of kin and your friends and family, who might be in a state of shock, have some sense of what you might want done with that information.” Emily Baxter from Away For A Bit

If a will is drafted on a mobile phone, is it valid?

digital afterlife or legacy on phone

Credit: Michal Zacharzewski, SXC

According to this recent blog post by IdeaLaw, the answer is “yes, it can be!” There has been a case in Queensland already in which the court ruled that a will drafted on an iPhone was valid.

Three elements need to be satisfied for a court to find an informal will valid.

1) That it is a document
2) That the document states the deceased’s intentions for their estate after their death
3) That the deceased intended the document to be a will

Which leads to an important question.

Are there or could there be wills drafted on social networking sites or within an email inbox that could be declared valid in the future?

IdeaLaw proposes that this could be so if these above elements can be demonstrated. Read their blog post for a legal perspective on the Queensland example and potential consequences in layman’s terms.

Three important reasons to plan and organize your digital afterlife

Emily Baxter from www.awayforabit.com offers her views on why it’s important to plan a digital estate as part of a featured post on PassingBye. Read the full feature on PassingBye…

We spend a lot of time online. If recent reports are to be believed, Australians spend close to one day a week online while the Brits are estimated to spend one day every fortnight on the same activity. In the US, it is thought that the average user spends closer to two days per week either on mobile or digital media.

Which ever way you look at it, that’s a lot of time spent online which is spent communicating with others on social, commenting online, banking, shopping…. Then there’s the plethora of accounts and communities that a user signs up for. For instance, people on average have at least two email accounts and depending on the research you read, about twenty five apps that they have downloaded onto their phones. That is a significant number of companies and communities that individuals are engaging with.

Given the general trends of more time spent in the digital universe, it’s worth thinking about the footprint you will leave behind when the time comes. Here are three important reasons to consider planning and organising your digital afterlife.

Ownership of digital assets are not automatically transferable to next of kin

Who actually owns digital assets is a key yet unclear issue in today’s estate and legacy planning as a recent news story with Apple highlighted. There was a hoax story a while ago in which Bruce Willis was suing Apple because he wouldn’t be able to pass his extensive iTunes collection on to his children when he died. The story was bogus but as Paul Gordon, Associate for Finlaysons, a national law firm in Australia points out, the issue is real.

“Often when you ‘buy’ music online what you are actually acquiring is a licence to listen to it, rather than buying the song itself,” Gordon points out. “That licence may come with restrictions and may not be passed onto your next of kin when you die (i.e. a ‘personal’ contract). These issues aren’t going to go away and I’m sure will come before the courts in the coming years.”

Digital providers will not just hand over access to personal data or information of the deceased unless there’s a legal requirement to do so as their position is to defend the privacy of the account holder, in death as in life.

Damin Murdock, Principal Lawyer of the MurdockCheng Legal Practice based in Sydney suggests that when writing up a will, individuals remove any ambiguity about how they want their digital information dealt with upon their death.

It’s also recommended that you identify a system for storing sensitive information confidentially that can be passed on to next of kin. There are many options for doing this, involving legal representation, an online service or both.

Digital memories don’t last forever

It’s important to plan to capture memories and conversations as part of digital legacy and estate planning. Our new digital identities mostly exist in the hands of third parties and for many these days, memories reside in email and social media. Our mementos of events are digital photographs, or a casual comment posted online. These seem fleeting in the moment but can quickly gain significance as life changes occur. While we assume their digital nature makes them always accessible, they may not end up being everlasting.

Recently I wrote about how I’ve changed email accounts from Caramail to Hotmail to Yahoo to Gmail for social use – in the last fifteen years. Unfortunately, when trying to look back at past conversations, some of these accounts are now lost or no longer accessible which means that a large swath of my history is lost, not only to myself but to anyone who I might have passed a curated version to.

Today Facebook and Gmail might seem immortal, but there’s every reason to question whether they’ll still be around in a decade. Or whether they’ll make it easy to uncover these past memories. Their purpose may be entirely different.

The speed in which technology platforms change means that it’s important to have a way of archiving conversations as they happen. While I’m not suggesting that every single personal email conversation must be stored, this recent experience has highlighted the value of a system to continually capture personal messages and notes.

Digital gives you the opportunity to shape your legacy

The explosion of digital services means that there’s a wealth of opportunity for every person to shape their legacy and the way that they would like to be remembered. For instance, services offering the ability to leave personal messages for next of kin to communicate last wishes or words of comfort, can provide tremendous support. It’s a reminder that they were loved.

At the same time, people often have an insatiable desire to find out more about loved ones who have died, even if they believe they know them well in the first place. It’s common to hear stories of mourners piecing together strands of a life story in the same way they would a jigsaw puzzle by looking through old photos or having conversations with friends or family of the person who has died.

A digital afterlife plan which includes memories and mementos, photos or correspondence can help next of kin, family and close friends to remember the good times and provide support in what will likely be a tough, emotional time.

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This feature was originally posted on PassingBye.

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