The digital vs physical issue – seen from a distance

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During the dotcom boom in the late 90s, the period when digital technologies were beginning to make their mark, it would have been inconceivable that digital property should be included in estate-planning documents. Ten years on and still the issue of digital legacies would seem absurd.

It took the fairly recent media disclosures of the difficulties parents faced with trying to access the social media accounts of their deceased children to highlight the issue of who actually owned this content.

Today, digital estate planning is essential because virtually every part of our lives, personal and professional, is impacted by this digital era. Smartphones, tablets, laptops and other digital gadgets have become reflections of our personalities, our interests and our identities, to the point that, for many, they have become the very fabric of our being.

In the recent 2014 Digital Impact Survey conducted by the Apigee Institute (developer of the intelligent API platform for digital business acceleration) and Stanford University’s Mobile Innovation Group, figures demonstrated that rising numbers of smartphone owners are becoming increasingly dependent on their devices. More than 90 percent reported that having a smartphone has altered how they connect with friends, and many claim they could not maintain a relationship with someone significant or find new friends without their smartphone.

Perhaps that might be seen as a sad reflection of our society today, but the reality is that digital is not going to decline any time soon and that we need to be taking a much more proactive view of the digital assets we’re accumulating.

Estate planning and administration practitioners should be discussing with their clients what they want to happen to their digital estate in the event they become permanently incapacitated or die. We hear a lot about parents’ anguish at not being able to access their children’s social media accounts after their death, but what if these children didn’t want their accounts exposed? What if they wanted them permanently erased when they die? It is vitally important that these wishes are included in any digital estate plan.

Digital property includes all digital assets such as music, films and photos, usernames and passwords, websites, Frequent Flyer Miles; anything that is stored digitally, also digital accounts (online banking, social media, online subscriptions etc) and digital hardware (smartphones, tablets, laptops etc).

Equally, there may also be different types of digital assets and digital devices – those personally owned and those owned by an online service provider and licensed under a terms-of-service-type agreement.

And herein lies a conundrum. Digital property may not necessarily comply with the same legal characteristics as physical property.

Take, for example the viability of the copyright regime; one area that has been considerably challenged by the advent of the Internet and digital technologies. The registration of domain names is a good case in point. The creation of the Internet has generated a new type of property with similar characteristics to trademark rights, but without inherent ties to the trademark law of any individual country. Since Cyberspace has no physical boundaries, defining rights in this new, valuable property presents a number of questions, including those relating to transferability, conditions for ownership (such as payment of registration fees), duration of ownership rights and forfeiture if there is abandonment.

Then there is the case of physical property – media such as books and music for example – that are generally protected by the first sale doctrine. Digital media, on the other hand, is universally governed by an EULA (end user license agreement). The purchase of such assets universally requires creating an account with the content provider, an account also governed by an EULA. As such, the first sale doctrine does not apply to digital media.

Whilst there continues to be considerable discussion internationally on this topic, there has been no formal legislative recognition of digital property in estate planning or estate administration, apart from some states in the US.

That said, there are clear definitions of what constitutes digital property and they are broad enough to cover the field for estate planning and administration purposes. A carefully drafted inventory, along with the rights of access and clear instructions for inheritance, will allow the digital estate to come into the legal possession and/or control of an executor or administrator, in the absence of a law or agreement to the contrary.

Even though the owners of digital property may have a written Will regarding their physical assets, the two property forms should be kept separate. Given the formality attendant to the execution of nonholographic Wills and the often rapidly changing nature and ownership of digital assets, Wills can be an awkward vehicle for digital property.

Furthermore, it remains unclear whether service providers will respect the terms of Wills to transfer ownership of digital assets.

A record with the Will (instead of in the Will) of where the digital inventory (including usernames and passwords) is being held is the best option.

The management of digital property is not difficult and there is a growing number of dedicated professionals who can help and support law firms with this process. The starting point is the realisation that digital property certainly has value and that is should be protected accordingly.

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The Autobituary

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In the past, when a loved one died a funeral service would be held followed by a burial service at the local cemetery. Family and close friends would attend both services and each year some would gather round the gravesite in remembrance. The numbers, however, would get less and less as the years passed.

Mourning practices not only vary from culture to culture but also person to person. Where there is no burial service, for example following a cremation, the mourning process is generally much shorter. With the advent of the digital era, however, a new platform is emerging for people to pay their respects.

With the increasing use of social media networks, family and friends will be able to keep the remembrance of the loved ones they have lost going in perpetuity. Facebook will now memorialise a deceased person’s account and other digital media companies are providing similar services.

And with this a new trend is emerging and is attracting a rapidly growing number of followers: Writing your own obituary in the living years.

For as long as they have been in existence newspapers have contained an obituary section that was generally edited by a staff journalist. In the majority of cases, those appearing in this section were celebrities, politicians and other well-known people.

Today, people are beginning to write their own obituaries and having these posted up online when they die. They are compiling their ‘autobituaries’ (as they have been coined) to ensure that the final words on their life are not only accurate, but also express the thanks and thoughts they want to leave behind.

One autobituary that was sent to us recently by a member struck a real chord with us. He wrote, in part, that he supported the notion that people should be able to view his body after he has died in order to pay their respects. He continued: “Unfortunately, there will be no viewing because my wife adamantly refuses my request to prop me up on the sofa with a bottle of Single Malt in my hand so I would appear to my friends in death as I did in life.”

Some of the obituaries we have received are coming from people who are terminally ill and, for them, it is an important part of coming to terms with that fact. They want to ensure they have the final say online about themselves and are remembered in the way they want to be remembered.

For us here at Planned Departure, many of these self-penned obituaries have inspired us to live our lives more fully and not to miss a moment of it.

If you would like to write your own obituary, please create an account on Planned Departure today.

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What exactly are we leaving behind?

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A couple of days ago, the BBC’s legal correspondent, Clive Coleman, wrote a captivating story about Louise Palmer’s struggle with Facebook to maintain access to her daughter’s social media account. Becky sadly died in 2010 from a brain tumour.

Mother and daughter were very close and when Becky was ill and lost both speech and movement, Louise would log in with her daughter to help Becky stay in touch with her friends.

Louise said that not only was losing a child the worst loss there is, she also became very fearful that other people were going to forget Becky too. Having the ability to go onto Becky’s Facebook page and read what people have put on her wall was comforting for Louise.

However, with regard to Becky’s Facebook account, Mrs Palmer told Mr Coleman: “I’m her mum and this was her Facebook page, and its contents I felt were my legacy. Her online stuff should now be mine to be able to access.”

Facebook did not agree.

Time can be a great healer but, for some, that time can be interminable.

Louise Palmer’s story is not unique. Almost every week a story appears in the press about the difficulty parents have in accessing their deceased children’s social media accounts. Organisations such as Facebook, Twitter and others justifiably have stringent security rules. It’s a new frontier, however, and as a result it’s become something of a legal minefield.

The UK Law Society has strongly advised people to leave a digital legacy after death, and an increasing number of lawyers are becoming very vocal on the same issue.

Yet, it’s one thing to stress the need for a digital legacy, it’s quite another to know just what it is that we may be leaving behind, and exactly what we want others to do with it. Physical property is much easier than digital property to put a value on and that’s one reason we have found for people delaying their digital legacy.

However, when we have pointed out the enormous difficulties loved ones can face trying to unravel their deceased’s digital property, the need becomes much less blurry.

At Planned Departure  we believe we still have a long way to go, but the more media coverage the issue of digital legacies receive, the more aware everyone will be of the need to adequately secure their digital assets.

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Charities of the future

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According to Government figures there are more than 160,000 registered charities in England and Wales. Fundraising is a key source of income generation for many and, for some, the only source of income.

In this digital era, new opportunities for income generation are opening up to charities. Online, mobile and digital legacy are three areas where charities should be concentrating their efforts.

As is well-known, the social media network is vast. But just how vast? According to recent figures from Facebook for example, the number of monthly active users (MAUs) for the social media site, 4th quarter 2014, was close to 1.4 billion, up 13.4 percent from 2013. Furthermore, the number of mobile monthly active users (MMAUs) for the same period was almost 1.2 billion, up by more than 25 percent. The average time spent on Facebook per user per day was a little over 20 minutes.

These are truly staggering figures but what does this mean for charities? Many things.

First, Facebook’s MMAU stats make interesting reading. Globally, mobile is growing and is rapidly becoming the defining point in communications. According to figures for 2014 recently released by Deloitte, more than two thirds of UK adults – about 35 million people – now have a smartphone and the number is rising. The biggest growth was 55 year olds.

Mobile devices and apps are disrupting established business models, transforming (or even destroying) old firms, creating new ones, and fundamentally changing the way people communicate, shop, bank, get news and information and entertain themselves. Mobile technology offers businesses the opportunity to engage with customers, employees and other stakeholders anytime, anywhere. This is one of the reasons why they are investing heavily in mobile and have implemented mobile platforms into their current strategies. Charities need to follow suit.

Second, we live in an era of “always connected”. Such is the ubiquitous use of smartphones, tablets, laptops and other digital gizmos that they have become reflections of our personalities, our interests and our identities. They are as much a part of us as the clothes we wear.

Yet it would appear from some research data that charities in the UK are failing dismally to effectively use their online presence to capitalise on the opportunities presented. Research by Virgin Money Giving and Third Sector Insight, revealed that charities across the UK are not maximising the potential of online fundraising. Eight out of 10 charities say online fundraising accounts for less than 20 percent of annual donations. Only 2 percent feel they are maximising online fundraising as a donation channel. Other data suggest that text donation campaigns alone could realise more than £150 million annually.

Although some people still like to receive hard copy letters, a growing number can be reached and engaged online. By using various online strategies, charities can be more regularly in touch, sharing photos, videos, invitations and other relevant material.

Social media should be an integral component of every charity’s fundraising strategy. Facebook, Twitter, LinkedIn, YouTube and others have all become vital avenues for promoting awareness and engaging with people. With the addition of Big Data, they can become a direct path into the personalised information streams of millions of consumers, and provide a unique opportunity to interact directly with potential donors.

As Facebook has shown by the number of active users, there is a lot more engagement online that makes people feel part of something unique, where they can play an active role in a project they feel part of. However, to make the most of their online presence, charity management need to ensure that their websites are mobile-friendly.

Alongside the capital generation abilities afforded by online and mobile technologies is the issue of digital legacies. With digital assets in the UK believed to be in excess of £25 billion (PwC data), there is a veritable fortune that charities could make by discussing with people how they could bequeath their digital assets to the charity when they die.

Music, photos, videos, material protected by copyright, Bitcoins, air miles; the list of digital property can be extensive. Internet accounts are like a safety deposit box in a bank; only the owner of that box knows what’s inside. Yet the Internet and the safety deposit box can be poles apart. When the owner of the box dies it belongs to his or her estate and the executor gets to open the box and controls the contents. It’s not so  straight-forward with the Internet.

Nominated executors take care of individuals’ assets when they die, complying with the individual’s requests. But with Internet accounts, few people give consideration to the assets they hold resulting in those assets often being lost forever. This is where charities can play an important role, not only ensuring that those on their mailing lists are aware of the need to protect their digital assets, but also encouraging their members to bequeath some (or all) of the digital property to the charity when they die.

Even though many people will already have made a Will clearly outlining what they want to done with their property, digital assets may not necessarily comply with the same legal characteristics as physical assets. Additionally, Wills can be an awkward vehicle for digital assets due to the often rapidly changing nature and ownership of digital assets. Furthermore, a Will is a public document which anybody can obtain, as a result, law firms advise people not to include their passwords in their Will.

If more people are made aware of the need to protect their digital property and the benefits of leaving that property to their chosen charity, the charities will receive invaluable funding from an ever growing list of donors, particularly as we expand into the digital era.

Please visit us at https://www.planneddeparture.com to find out more.

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Charitable digital assets

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Such has the concentration been on the Millennial Generation that the focus has moved away significantly from the most compelling generation, particularly for businesses and charities: the Baby Boomers.

Not just Baby Boomers but, more specifically, Baby Boomer women. Born between 1946 and 1964 this affluent segment wields more spending clout than any other. Many have developed successful careers and made substantial investments during the boom years, and with inheritances from parents and/or husbands, they have become more financially empowered than any other generation of women.

Whilst there might once have been a noticeable digital divide between Millennials and Boomers, that is definitely no longer the case today. Baby Boomers don’t spend vast amounts of time glued to their smartphones or tablets, but they do engage in online communications on a very regular basis. They also download music and films and watch videos online, they use their smartphones as cameras, they purchase goods and services online and they actively search for health information – now the third most popular online activity for all internet users 18 and older.

Yet when it comes to addressing the issue of digital asset protection, the focus, again, has been on the younger generations. Part of the reason for this is the number of children and teenagers who have died leaving their parents with the heartache of trying to access their online accounts.

Baby Boomers too have a digital legacy that is worth protecting. Since Baby Boomers contribute more than 40 percent of all giving, for charities, these digital legacies have the potential for being a source of considerable income. If we take Tim Cooke as an example of generously giving to charities and then extrapolate that out to what his digital assets are probably worth – you can just image how a charity would benefit if he bequeathed them even a fraction of these assets.

Bibic is an ideal example of a charity geared up to benefit from donated digital assets. This may be something few of us think of, yet the value of these untapped assets stretches into billions of pounds.  Now that is something worth considering!

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Mind the (digital planning) gap

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The message finally seems to be getting across. Families who have lost siblings may not have to fight quite so hard to get access to their loved ones’ social media accounts when they die.

Facebook has announced the launch of a legacy contact feature that allows users to give permission to someone else (a family member or friend) to manage their account when they pass away and to post a final message or an obituary on their behalf.

Prior to this service, when an account holder died Facebook offered just a basic memorialised account that was viewable but could not be managed by anyone.

It is estimated that more than 10,000 Facebook users die each day. Whilst the announcement of the legacy contact service is good news for the family of the deceased, they will still not be able to access everything in an individual’s account. Furthermore, the service is only available (at present) in the US.

However, it’s a good start and we are seeing other organisations such as Apple, Google and Twitter beginning to recognise the need to provide digital legacy services. But the social media networks can be just a small part of an individual’s digital legacy.

In research undertaken by Saga, a British company with around 3 million customers and focusing on serving the needs of those aged 50 and over, found that 87 percent of Britons have not planned their digital legacy. Almost a year ago the UK Law Society was urging people to leave clear instructions about what should happen to their social media, computer games and other online accounts after their death.

Gary Rycroft, a member of the Law Society Wills and Equity Committee, said people should not assume family members know where to look online and to make details of their digital life absolutely clear. Even if family members have knowledge of an individual;s usernames and passwords for online accounts, accessing these account could be committing a criminal offence under the Computer Misuse Act 1990.

Given the rapidly changing volume, nature and ownership of digital assets, it is becoming more widely recognised by lawyers that including these assets in Wills can be difficult and expensive, particularly if regular changes are to be made to the WIll. That’s one of the reasons why Planned Departure is working closely with an increasing number of law firms to efficiently accommodate individuals’ digital legacies.

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The challenge of strong encryption

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Such is the ubiquitous use of smartphones, tablets, laptops and other digital gizmos that they have become reflections of our personalities, our interests and our identities. They are as much a part of us as the clothes we wear.

For the majority, the blogosphere and social media networks – LinkedIn, Facebook, Twitter and others – have become woven into the very fabric of our lives. We have transitioned to a global interactive knowledge economy, our world marked by major upheavals in technological innovations.

Even in countries dominated by authoritarian regimes, social media have given people access to alternative and independent sources of information. Such is the extent of the availability of knowledge that it can bring about fundamental reform. This can be seen no more clearly than the Arab Spring.

Given the conspicuous silence of the Arab media towards the suppression of political dissent, human rights abuses and earlier protest activities, the popular uprisings in the Arab world in 2011 took many in the West by surprise.

But in this knowledge-rich world and with newly developing digital technologies comes surveillance on an unprecedented scope and scale. The social networking services we use so frequently, our digitised address books and messaging applications provide a wealth of detailed knowledge of who we are, where we are and our associates and contacts.

Documents released by former National Security Agency (NSA) contractor Edward Snowden suggest that the NSA and the UK’s GCHQ have unilaterally sought to compromise the security of private systems and networks—many operated by major US-based technology companies—to gain access to user data and communications.

These revelations have led to global loss of trust in the security and privacy of US-origin technology. As a result, US companies have introduced a number of encryption measures to safeguard users against surveillance overreach. Google and Apple have announced that data stored on their mobile devices would be encrypted by default, with even the company unable to decrypt locally stored data. WhatsApp has introduced end-to-end encryption and Facebook, Microsoft, and Yahoo are also expanding encryption across their services.

In the digital age, strong encryption may be deemed essential for the enjoyment of the right to communicate anonymously and privately. We might applaud the activities of Apple, Google, Facebook and other companies, but give a thought to what could happen to the digital assets of individuals who use the products and services of these companies, particularly when they die.

There has been much written in the media concerning the enormous difficulties parents have faced when trying to retrieve the information and material stored in the social media accounts of their loved ones who have passed away.

Strong encryption only makes the task exceedingly more difficult unless appropriate measures are taken during our living years to ensure that, when we die, the digital material we want our loved ones to inherit will be actioned according to our wishes.

The number of people who have established a digital Will is growing but the speed of technological change is accelerating faster. We have much to do to get the message across to the wider community about the need to ensure a digital legacy is in place while the opportunity to do so exists.

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