All About Estates

Digital Estate Planning – Part 1: Digital Assets: to Preserve or Destroy

Today’s blog was written by Jenna Ward, Articling Student, Fasken Martineau DuMoulin.

Last year, we wrote about the steps that owners of digital assets should take to preserve assets and ensure a smooth transition of such assets to executors and beneficiaries. Here are some more thoughts on the topic of digital assets.

  1. iTunes library, Kindle store purchases and other digital purchases: increasingly, iTunes libraries and Kindle book collections have replaced traditional record or book collections. However, such digital libraries remain valuable from both a sentimental and monetary perspective. For example, a 2011 survey found that Americans value their digital assets at more than $50,000 on average. It is important for owners of digital assets to review the contracts of the service providers for such assets to determine whether ownership can be transitioned on death, and if so, how authority over and ownership of the asset can be transitioned.
  2. Social media accounts: for Facebook, LinkedIn, Instagram, Twitter and other social media accounts, instructions should be prepared to detail whether the accounts are to be continued. For example, if Facebook becomes aware that a person has passed away, they have a policy to “memorialize the account”. Memorialized accounts remain active as a way for people on Facebook to remember and celebrate those who have passed away. Facebook users can specify in advance whether they would like their account memorialized or permanently deleted upon their death.

LinkedIn does not offer a memorialized option, but allows any accountholder to complete an online form to have the profile of a deceased LinkedIn member removed. No death certificate is needed, but a link to the user’s obituary is required.

The terms of service for each social media account must also be carefully reviewed because providing access to an estate trustee to certain accounts may breach applicable terms of use. By way of example, Facebook’s terms and conditions prohibit anyone, including estate trustees and family members from logging into another person’s account.

  1. Points-based programs: for points-related accounts, the account holder should ascertain whether points or credits can be transferred and instructions should be left for transferring such credits.
  2. List of passwords: it is important to create a record of all digital assets, together with passwords and copies of the contracts related to those digital assets. This information can be stored in a number of different ways: on an encrypted USB, in a sealed envelope in a safety deposit box, or through password management software such as KeePass. From a purely sentimental perspective, it is important to preserve laptop or desktop log-ins, especially because it has become common practice to store priceless family photos and videos digitally. Without a computer user name or Dropbox password, access to those memories may be lost completely.

You can view the full post here.

While the above discussion focuses on ensuring a smooth transition of digital assets, it is also important to consider estate planning when the intent of the deceased is to destroy certain digital assets.

There are a number of reasons why someone may wish to destroy digital assets and ensure that their online presence does not outlive them. Whether the concern is disclosure of private photos, email accounts, cell phone call logs, WhatsApp message history, online journals, or an anonymous blog, it is completely foreseeable that an individual would prefer that certain assets are kept from the eyes of family members. Fortunately, just as a comprehensive digital estate plan can be used to preserve digital assets, the following steps can be taken to also ensure destruction of such assets:

  1. Choosing a “digital” executor: some people may wish to draft a separate will for the digital assets with a digital estate trustee. The digital estate trustee may be a different person than the estate trustee for the non-digital estate because the desired attributes of the digital estate trustee may be different. It is important to choose someone the testator can be open and honest with as well as someone who is technologically savvy enough to carry out the testator’s wishes. Providing the digital estate trustee with detailed instructions and passwords to be used to close and delete accounts, clear email and social media accounts, call logs, online photo albums and iCloud accounts will ensure that the testator’s wishes are carried out.
  2. Using account management applications: services like justdelete.me and deseat.me can be used to generate a complete list of all of an individual’s online accounts ever created and assist in deleting them.
  3. Make arrangements in advance: as mentioned above, Facebook allows users to specify in advance whether to have their accounts permanent deleted upon their death. The user simply includes a legacy contact who will notify Facebook that the user has passed and Facebook will then delete the account.
  4. When all else fails: there is the simple option of choosing indiscernible and unique passwords so that online accounts cannot be accessed. Concerns about data on hardware can be addressed by leaving instructions for the digital estate trustee to run a factory reset on laptops or cell phones or to simply destroy hard drives and external storage devices.

Whether the goal is preservation or destruction, it is important to encourage clients to turn their minds to how they would like their digital assets managed.

Part 2 of this series on digital estate planning will discuss cryptocurrencies and provide an overview of the issues that estate planners can expect to see in the near future.

About Corina Weigl
Corina Weigl is a partner in the Trusts, Wills, Estates and Charities group at Fasken, a leading international law firm with over 650 lawyers and 9 offices worldwide that offers comprehensive estate planning, estate administration, personal tax planning, charitable giving and estate litigation services. Email: cweigl@fasken.com

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