Digital Assets Postmortem – Probate versus Policy

Death in Cyberspace could have been taken directly from a Flash Gordon comic strip: Flash Gordon in combat with Ming the Merciless, the evil ruler of the planet Mongo.

It’s a bit more serious than that but, nonetheless, it makes for an interesting story.

Digital death is becoming an expanding area of law that is attracting considerable comment and interest from a plethora of parties. Much of this interest has stemmed from the media’s capitalising on the frenzy surrounding social media sites (such as Facebook) and the deaths of account holders. Parents, on the one hand, are demanding access to their deceased child’s account while the social networks argue the issue of privacy and the Terms and Conditions agreed at the time of opening an account.

Some progress has been made, with Facebook implementing its “memorialising” feature, allowing friends and families to request that a decedent’s account become effectively frozen whilst still providing access by family and friends.

Yet this amenity fails to resolve more substantive issues created by a digital passing, such as who can dictate the fate of a loved one’s account, over what time period should a memorialised presence be maintained and whether memorialisation is what the decedent would truly have wanted.

A death in cyberspace is a novel issue for many lawyers and presents some interesting challenges that society as a whole hasn’t fully come to grips with. It’s a quiet revolution that is rapidly coming to the probate and estate planning world.

Aside from social media accounts there are many other digital assets that are creating equally difficult issues.

Take for example your website. Is it hosted in the UK, in an Asian or European country, or perhaps in the USA? And what about your email accounts? Where are they held? In the event you become permanently disabled or you die, which country’s property laws apply?

And then there are issues relating to online payment accounts, virtual currencies and reward cards. Online payment mechanisms such as e-Bay, PayPal and Amazon will usually have traditional bank accounts linked to them, so it might be unlikely that cash balances will exist in the online accounts. However, this will definitely not be the case in every situation, requiring attorneys and executors to thoroughly check the online accounts for pending refunds and credits.

The situation with online accounts can be made even more difficult if the email address of the account holder is unknown. Often with no physical address and communication being made only by email (often to an enquiries@ address), dealing with these entities is generally more difficult than dealing with high street banks.

Additionally, with the increasing numbers of online-only banks beginning to emerge, attorneys’ and executors’ ability to continue to manage such accounts digitally may will depend on the terms and conditions of the bank.

Reward cards are a common inclusion in most people’s wallets and will include those from supermarkets, fuel companies, airlines and hotels. Whether or not the value of these schemes can be used by an attorney on behalf of an adult, or transferred after death, depends on the organisation administering the scheme.

Some of the big supermarkets provide for rewards to be transferrable on death, but other organisations – such as airlines and hotel groups – state that loyalty points that are unused at the time of death will be cancelled, together with membership of the scheme.

As the digital asset stakes in the cyberworld continue to rise, the challenge of finding a standard dispositional protocol for these assets may face competing power extremes. On one side of this continuum we have traditional property law, often adequately covered in probate. On the other side, however, we have corporate policy, manifested typically as a User Agreement or Terms of Service.

Contrary to what these extremes might suggest in terms of the best solutions to the issues raised by digital death, viable compromise solutions do not yet exist between these two legal extremes. One way forward would be to find a mid-continuum solution lying somewhere between probate law and corporate contractual policy that would serve the greatest number of societal interests.

Dealing with digital assets under a power of attorney or a Will can present challenges and will be an area of the law that attracts a lot of media attention.

Even though many digital assets may have more of an emotional or sentimental significance rather than financial value, it is an area of law that is beginning to raise new challenges for legal advisers and probate lawyers.

Author: Planned Departure

Living and working in this digital era, our social media accounts – from Facebook, Twitter, Flickr to the likes of Pinterest – are increasing not only in number but also in volume. Additionally, many of us have domain names registered and libraries of movies, digital music and e-Books that can be of significant value. And let's not forget about Bitcoin and other virtual currencies! For the majority of us, these accounts and digital assets are likely to outlive us. And when we die, it is left up to family members and estate executors to sift through them all. Furthermore, even though they may have all the required passwords necessary for these accounts, many heirs will discover that they have no clear authority to access, or even to manage, the online accounts of their deceased loved ones. With the value of individuals' digital assets globally measured in the hundreds of billions of dollars, planning for the protection of our digital assets has moved to centre stage. It is essential that our online and social media accounts are included as part of the estate planning process. Failure to do so may not only deprive those we leave behind of fond memories and (possibly) a little nest egg, it could also leave us vulnerable to postmortem identity theft if fraudsters get to use our personal details to apply for credit facilities whilst our accounts remain unguarded. Planned Departure resolves these issues. We provide you with the ability not only to protect your digital assets, but also to clearly indicate who can access your online accounts and who should benefit from them. Create piece of mind today by registering with us in one quick and easy process.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s