Do you have an email account (e.g. g-mail or hotmail)? A Facebook or Instagram account? Or even a PayPal account?
You most likely answered “yes” to at least one of the above.
Kim Martin and Peter Warrall in their article, “Digital life after death,” state that because so much of our life, both professional and personal, has found its way into the digital sphere, it has become essential to discuss with clients what will happen to their digital estate on incapacity and death.
In August 2014, Delaware in the U.S. adopted and signed into law the “Fiduciary Access to Digital Accounts Act.” The Act defines your “digital estate” to include:
• Digital assets: data, text, emails, documents, audio, video, images, sounds, social media content, social networking content, health care records, health insurance records, computer source codes and computer programs, software and software licences, databases including the usernames and passwords, created, generated, sent, communicated, shared received or stored by an electronic means digital service.
• Digital devices: an electronic device that can create, generate, send, share, communicate, receive, store, display or process information, including, but not limited to, desktops, laptops, tablets, peripherals, servers, mobile telephones, smart phones, hard drives and any similar digital storage device.
• Digital account: an electronic system for creating, generating, sending, sharing, communicating, receiving, storing, displaying or processing information which provides access to a digital asset, including, but not limited to, email accounts, social network accounts, social media accounts, file sharing accounts, health insurance accounts, health care accounts, financial management accounts, domain registration accounts, domain name service accounts, web hosting accounts, tax preparation accounts which currently exist or may exist as technology develops or such comparable time as technology develops.
What would you like to happen to these accounts and the information they store upon your death? Would you like your Facebook memorialised or the account cleaned and closed? Do you want anyone to receive print outs or a hard drive with content stored on it? Or even on a more basic level, do you have records of all your usernames and passwords?
Photos are the most common example of a digitally stored asset, however your family may also value being able to listen to your music playlists or look at your Instagram feed. Using contact information stored to notify people of your death may also be valued.
To avoid potential arguments arising and also to allow access to your “digital accounts”, it is essential to appoint a Digital Content Administrator and direct them in relation to your wishes. Careful consideration must be given to who will be appointed – as they must have the necessary skills to administer your digital estate.
As this is a new upcoming area, unfortunately, every company has their own policy:
• Immediate family (must be named on birth or death certificate or executor of the estate) can request the account to be removed
• To memorialise an account, an online application can be made by anyone, provided they supply proof of death (e.g. obituary or newspaper article)
• They will not give out account details
• Deactivate account
• Proof that applicant is a family member (by birth or death certificate)
• Proof of death (by obituary, newspaper article or death certificate)
• As of 13 May 2015, Australians can choose to have their accounts deleted or a legacy Contact may be appointed to manage the account as an executor with powers of your digital asset
• This person can then write posts, respond to new friend requests and update the profile picture as a Memorialised Account
• This person may also download an archive of the deceased’s photos, posts and profile information
• Cannot log in as the deceased and review the deceased’s private messages
• Will provide account access
• May provide account content to executor/authorised representative
• Will send all emails and contacts to an appointed person, and then close the account
• Will permanently delete all content and terminate account upon receipt of death certificate
• Will remove account after receiving verification of death form and email address registered to deceased’s account
• Will allow all relatives to remove account or save back up of public tweets
• Executor can access account
• Executor/LPR can close account
• Cheque issued in account holder’s name
• You’ve merely purchased license to use music, movies, books etc.
• They cannot be transferred on death.
Your digital estate will play an extremely important role in your family’s grieving process and should not be considered a trivial matter.
Please make contact with our office to draft your Will and Enduring Power of Attorney, or update your existing Will and Enduring Power of Attorney to include a digital estate plan.