The Digital Afterlife
What will happen in yours?
Questions of access, privacy, ownership and management.
by Lisa R. Schwartz, JD, LLM
Consider your digital footprint and legacy. In the digital age, your assets and much of your existence dwells only in electronic form. Financially, socially, and personally your digital life will live on unless you take control by planning.
Lurking in the Electronic Realm:
MULTIPLE HARD DRIVES • MULTIPLE DEVICES • MULTIPLE EMAIL ACCOUNTS
PC • LAPTOP • EREADER • IMAC • IPHONE
IPAD • WORK CLOUD • DROPBOX • ICLOUD GOOGLE DRIVE • MANAGE WEBSITE DATA BASE SUBSCRIPTIONS • FACEBOOK TWITTER • LINKEDIN • SNAPCHAT REDDIT • VINE • SUBSCRIPTIONS • BANKING PASSWORDS • INVESTMENT ACCOUNTS MANAGE A BUSINESS • MANAGE A BLOG GAMING • ONLINE MAGAZINES • ENTERTAINMENT SITES • MUSIC PLATFORMS WEBSITE HOSTING PLATFORM • WORDPRESS • CUSTOMER MANAGEMENT SYSTEM
CRYTOCURRENCY • PHOTOGRAPHS & VIDEO • BILL PAY • PERSONAL LETTERS
BROWSING HISTORY • SHOPPING/SELLING
CREATIVE WORKS/INTELLECTUAL PROPERTY • TAX RETURNS
COMMUNICATIONS SENT, RECEIVED, DELETED
Consider for a moment what will happen if you have no digital estate plan. That is what happened to a client’s son, Soren, who unmarried at 34 was on vacation with his buddies in Costa Rica when he was killed in a jet ski accident. My client, Soren’s mom, whose name is Jeanne was appointed by the court as the Administratrix of his estate. Her husband, Soren’s father, had died a year earlier after a very long bout of Lou Gehrig’s disease. Jeanne never really used a computer before her husband died.
Since her son was so young, he hadn’t considered estate planning to be important. So, when Jeanne finally got access to Soren’s computer, she got some surprises, like inadvertently coming across his porn collection. This was, of course, mortifying to her and probably Soren would NOT have wanted his mom to remember him that way. She was also surprised that many of the online sites would not give her access without proof she was authorized by the court to gain entry to her son’s web activities.
Armed with only the tiniest bit of computer knowledge, she spent hours trying to pry into his electronic devices and all his financial, social and personal accounts. She had to sift among Soren’s digital remains without any idea of where he had a foot print, how to get into his various online localities, never sure if she found everything, what she should review before deleting, where things should go, what Soren would have wanted, what company to trust to purge him from the internet and lastly, not wanting to leave any part of his online identity exposed to hackers or identity thieves.
No one has access to your property except you. Without digital estate planning, whomever you designate as your executor will likely gain access to all your electronic assets, photos, accounts, etc., and maybe after a court struggle. Will they find everything? Do you want them to? Is it fair to burden your executor with this enormous undertaking without instructions or your wishes? Does data in a cloud have value if it is not accessible? No, no it doesn’t. Is your executor sufficiently tech savvy to manage the extent of your digital legacy without specific instructions from you? Do you want to choose what service provider is reliable to be entrusted with deleting certain of your online activities?
In estate planning, we have to bring the digital footprint in for a landing, make a home for the information that is traceable here on earth. Describe who has authority, to what extent and what should be done with each locality. It is a matter of centralizing the information needed to locate and access our complete digital existence. Then ensure that it is managed according to what we want and what is easiest for our families or our digital fiduciary (a.k.a. agent) to handle.
So… orchestrate your digital life for the inevitable transition.
1. Designate one or more digital fiduciaries in your estate plan who are willing to serve and capable of doing so.
2. Make a list/inventory of all forms of your digital assets and how to access each. If you currently use a password manager program you are about 20% of the way there. Otherwise secure your list in a safe place either in a physical safe or in a virtual security deposit box, encrypted document retention facility in the cloud, or the like.
3. Decide how you want or need each asset to be handled. Different types need to be managed differently. Ensure your photos are archived and the one who would most appreciate them, gets them. Other aspects of your digital identity you’ll want transferred to business colleagues or a business successor, certain things you might want deleted. Consider whether some assets have monetary value. Who do you want to manage these valuable digital assets? Should these asserts be managed, and transferred, or liquidated? If so, how?
4. Provide clear instructions to your designated Digital agent(s) on how you want each asset handled and give she or he the legal authority to carry out your plan. Though your wishes may conflict with the terms of service agreements or current outdated law, all the more reason to be clear about your wishes. Include authority to act in a formal power of attorney designation.
5. Use an online management tool to keep track of your digital assets, either by reference to locations and how to gain access or a tool which functions like a virtual security deposit box. Also, Facebook offers the option to designate a Legacy Contact and Google has an Inactive Account Manager. Activate these options today.
Take all of these steps despite the fact that in Pennsylvania, where I practice, there is no law yet in place to govern how the digital assets of Pennsylvanians can be managed. One federal law provides that it is a crime to access another’s electronic possessions without written authority. (Philadelphians… recall newscaster Larry Mendte? He unlawfully hacked into a co-worker’s email account.) Yet another federal law gives an estate administrator or digital agent some authority to stand in the shoes of the now departed owner, the law limits the ability of the holder of the information to disclose the owner’s electronic content to the agent. As a result, the executor or designated digital agent of the estate needs to petition the court to issue an order forcing banks and other companies in possession of your electronic data to make certain disclosures of the decedent’s digital content. In the tension between making it a crime to unlawfully access online property of another and the need to access that property after a death the law has not yet caught up. Without a law in force in Pennsylvania and no digital estate planning, an estate administrator or digital agent may be either locked out or given free rein of another’s online personal, financial and business property.
Can you imagine how hard this would be for your family to manage? For privacy, security, and continuity in the management of your digital estate, Plan Your Digital Afterlife.
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