Practical guidance for managing digital estates & memories
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.
You may be thinking about what happens to your digital estate after you die and you’ve read that it’s wise to provide details for your online accounts – including usernames, passwords as well as an overview of important information locked behind these accounts — to your nominated friend, family member or next of kin.
What options are available to you to transition this information securely and reliably? The chances are you won’t want to share sensitive log in and account details to your next of kin while you are alive for many reasons including security.
Copyright: Asif Akbar
Consider a Digital Afterlife Service
Online services concerned with passwords and passing on digital legacies are varied in what they offer but generally speaking, they aim to centrally manage multiple sources of data in one place as well as allow users to nominate who receives this data when they die. After the user’s death, information is often transferred to nominated contacts without sharing usernames and/or passwords.
Many include a decent amount of storage for the account holder to organise photos, memories, notes and documents with friendly user interfaces for viewing and downloading. On the whole, they encourage account holders to think in a structured way about doing an inventory of their online life and the digital legacy that they’d like to share.
Digital Services: How to keep passwords confidential while bequeathing them to your next of kin
Digital services for managing passwords and other important information
“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?”
With courts recognising informal documents such as notes, emails, letters, video as having legal standing, one key aspect to think about carefully when planning post-mortem messages intended for next of kin, family or friends is what you should include in them. Even if your intent is good, by leaving a personal message you may raise a recipient’s expectations or sense of entitlement relating to an inheritance and risk the potential of your estate instructions being questioned after death.
There’s a plethora of digital services now available for consumers where they can share messages and information with their next of kin, friends and family after they die.
Darryl Browne, Solicitor at Browne-Linkenbagh explains that there has been a 60 per cent increase in claims over the last decade in Australia largely initiated by people who have been acknowledged within informal documentation by a deceased party which has later been used to contest the deceased person’s will.
In the UK also, claims for mis-handling a deceased person’s estate has tripled in a year, the result of inadequate safe guards put in place as people rely more and more on DIY wills and informal estate planning measures.
“When you make declarations that are wrong, that overly inflate a person’s worth to you or are inflammatory when recording last wishes, it can be counterproductive,” says Browne. “If a will is contested, claims will take two or more years to be resolved and can have significant emotional, legal and financial implications for the intended beneficiaries of your estate.”
Credit: Billy Alexander
Including messages as part of estate planning for next of kin and/or other family and friends can provide tremendous comfort for those mourning the loss of someone they love. It’s important however that these personal messages are not executed casually.
Leaving behind a carelessly written note or one that has been recorded in haste can result in emotional fall out for relatives or friends already dealing with loss. It can also have legal ramifications for how the estate is later administered, leaving a will vulnerable to contestation which in turn results in considerable delays and potential costs for named beneficiaries.
This two-part feature will cover the offline and digital options in planning post mortem communications as well as considerations to avoid legal pitfalls.
What digital services exist to incorporate message giving as part of estate planning?
With the emergence and increasing reliance on the internet and digital services, it’s not surprising that there are many new online offerings catering for the digital afterlife.
There are several which help users do an audit of and manage their digital accounts and many of these already offer additional service components which enable someone to add personal messages for their next of kin or intended estate recipients.
Fred Schebesta, co-founder of finder.com.au, an online financial services comparison website points out that the choice of online apps and services is wide ranging.
“Facebook apps like IfIDie.net allow you to leave a personal message on your Facebook if you were to die. When signing up for the app you designate three participating friends who will let the app know when you pass away, which then prompts it to release your pre-recorded message,” says Schebesta. “There’s even a startup called Eterni.me that’s developing a service where you can create an online avatar that your loved ones can interact with.”
New services such as Eterniam provide access to digital assets to next of kin, family or friends as designated by the account owner. Parvez Anandam CEO for Eterniam says, “these digital assets can be photos, videos and important documents including both important legal ones as well as deeply personal ones such as letters to loved ones.”
Another recent digital afterlife start up, Passing Bye, offers users the option of assigning private messages and journal sharing to their nominated kin. With the Last Private Message feature, account holders can convey thoughts and notes that are sent to recipients as simple written messages. If a member is looking to include more, they can set up a journal entry or series of entries that can include photos and videos with text.
All these digital services will work using a fee structure, generally requiring an account holder to pay monthly or annual tariffs although in some cases they may include an option for the user to pay a one time lifetime fee.
For someone doesn’t want to pay for a service, the Facebook afterlife app ifIdie.net and many of these aforementioned companies also offer basic free services to accompany their premium offerings. They are often provided as a sample to entice subscribers to upgrade.
Another option for regular or avid Google users is Google Inactive Manager, a free service for account holders. Its objective is to encourage users to plan what happens to their Google data after death and includes a private written message option as part of the nomination or destroy process. This feature is available even if the user decides that all data is to be destroyed by the service provider. The downside to using this service is that Google will send messages and follow afterlife instructions only after a timeframe of at least three months. As a result, Google Inactive Manager will not be of benefit for messages that are time sensitive or include information that next of kin require immediately. How to sign up to Google Inactive Manager.
Important legal and practical considerations
Credit: Shho
As I’ve previously emphasised, it’s very important with any digital offering supporting your estate management efforts, that you understand their terms and conditions. This article gives a good summary on things to consider when signing up to a digital afterlife service but some questions to ask and think about when doing your assessment include:
With courts recognising informal documents such as notes, emails, letters, video as having legal standing, another key aspect to think about carefully is what to include in post-mortem messages intended for next of kin, family or friends. Even if your intent is good, by leaving a personal message you may raise a recipient’s expectations or sense of entitlement relating to an inheritance and risk the potential of your estate instructions being questioned after death.
Darryl Browne, Solicitor at Browne-Linkenbagh explains that there has been a 60 per cent increase in claims over the last decade in Australia largely initiated by people who have been acknowledged within informal documentation by a deceased party which has later been used to contest the deceased person’s will.
“When you make declarations that are wrong, that overly inflate a person’s worth to you or are inflammatory when recording last wishes, it can be counterproductive,” says Browne. “If a will is contested, claims will take two or more years to be resolved and can have significant emotional, legal and financial implications for the intended beneficiaries of your estate.”
Kay Lam-McLeod, IT Lawyer from IdeaLaw agrees. “Remember that if your will is challenged, the estate will get hit with legal fees and it holds up distribution. So the people you want to leave your inheritance to are the ones who will suffer as a result.”
NEXT: What to think about when planning digital and offline post-mortem messages to avoid legal complications for beneficiaries.
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.
Away For A Bit 