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Start planning now in the new year.
We would like to wish all our readers a happy and prosperous 2016.
Please continue to support us by sharing our content and inviting others to join our platform.
Start planning now in the new year.
Oh how things have changed.
Around 600 BC, Athenian statesman and law maker, Solon, was credited with the introduction into Greek law of wills. Prior to this, no man in Greece was allowed to make a will; all his assets at death belonged to his family. The terms of Solon’s law bear much resemblance to what we have under UK law today.
It wasn’t until the early 1990s, some 2,500 years on, that the real winds of change were about to have a fundamental impact on our personal assets. And the origins of these winds? Cyberspace!
But let’s go back just a few years to the early 1980s when these winds were little more than just a soft breeze. Microsoft ruled the world, our computers being largely DOS-based and essentially stand-alone word processors. The World Wide Web, emails, social media, Second Life and fiat currencies were all at least a decade or more away.
With the introduction of Sir Tim Berners-Lee’s World Wide Web in 1993, that early breeze started to gather intensity. The computer slowly evolved from a word processor into an Internet portal that became the primary means of people interacting with the world around them.
The turn of the second millennium and the spinnakers are up and the sails are full as we race into the digital era. Not only are we now using keyboard and mouse to connect with the world at large, but the introduction of VoIP has meant that even telephone services are transmitted over the Internet. I’m sure the song made famous by jazz musician Louis Armstrong in 1968, “What a Wonderful World”, was not based on the world that was beginning to dominate our lives.
Indeed, for many of us, the transformation into the Cyberworld was so subtle that we didn’t even realise what was happening around us – until there was a power failure!
The Internet has become such an integral part of our lives that it’s inconceivable to think that we could do anything, professionally or personally, without it. And therein lies a conundrum.
Solon set the scene for the disposal of our assets in accordance with our wishes following death, but in the Cyberworld in which we now reside, we have a number of very different asset classes. We are accumulating vastly more digital assets than we are physical assets and the legal system that should effectively deal with these types of assets is woefully behind the times.
Probate as arrived in Cyberspace but there are few who are capable of taking care of its inhabitants. In fact, such is the pace of technological change that many lawyers are suggesting the legal system may never catch up.
Does it really matter that the law is not up-to-date with regard to probate and digital assets? Without addressing specifics, having a will should cover all our assets – both physical and digital – should it not? The answer to the first question is an absolute YES and the answer to the second, sadly, is no.
As in the real world, life in Cyberspace varies and each decedent is going to present numerous challenges for the surrogate/executor and his or her legal advisors. As we have said in the past, just determining what online accounts a decedent has can be the first major challenge. Even when these accounts have beed identified, access to them will need to be gained.
Being an inanimate object, the computer is not able to make a rational judgement as to whether a user should have access to the privilege being requested (accessing files for example). For many of us, security revolves around the use of passwords. So, without a human to monitor the transaction, the assumption is made that if the user has the right password, then the user is the person who he or she claims to be – or at least has been duly authorised by the legitimate owner of the password.
With online accounts we use passwords and other security tools to protect our valuable property. In many cases, terms and conditions relating to usernames and passwords make it binding on the individual not to share these with anyone else.
In a study by private banking organisation US Trust, it was reported that of the wealthiest respondents, almost 50 percent regularly change their passwords to protect anything stored electronically. Probate estate may not always be required, but in many cases estate administration lawyers are suggesting that it would be desirable to establish one in order to give the personal representative of the decedent access to cyber property.
The most effective way for people to protect their digital estates is not in a conventional will, but in a digital will allows individuals to inventory all their digital assets, including usernames, passwords and postmortem instructions. A digital surrogate or executor is named by the asset owner and this person is subsequently provided access to the digital property upon satisfactory provision of proof of death or permanent incapacity. The digital executor can then download, delete or provide to beneficiaries such assets in accordance with the instructions of the decedent.
Would Solon be turning in his grave if he could see the position of our laws today regarding wills? You can bet your last Bitcoin he would!
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.
Few will doubt that digital photography has overtaken conventional film for amateur and professional photographers. With our daily use of social media networks – Flickr, Facebook, Instagram and others – it’s easy to understand why. Once captured, digital photographs are already in a format that makes them incredibly easy to use and share. Digital is about sharing the content now and not so much about sharing photographic creations.
With point-and-click technology, we tend to take our photos for granted. Unlike analogue images we shot onto 35mm film and paid the processing fee to have developed, we only keep the digital images we want, the others we simply delete.
Smartphones, with their gigabyte storage, sophisticated lenses, built-in filters and the ability to automatically apply single-shot HDR (high-dynamic range) processing, have become a valid camera line for photography. They’re easily portable and we have them on us almost 24/7.
So, we snap away, download those images we want to keep: some going into cloud storage, others onto various other storage devices and some will even be used on our websites.
Unless you’re a professional photographer, these images will generally only have sentimental value. Or will they?
Not having a crystal ball makes it difficult to look into the future. Take a look at the picture above and place a value on the image. Does it have any financial value or is it just something of a sentimental reflection for those involved.
The girls, from left to right, are Angela Higney, Michele de Gennaro, Colette Marx-Neilsen and Lynn Veronneau. They made up a group called Les Horribles Cernettes and the picture was the first photographic image published on the World Wide Web.
Silvano de Gennaro, an analyst in the Computer Science department at CERN (the European research organisation based in Switzerland that operates the largest particle physics laboratory in the world) who helped form the band, said that Les Cernettes were the subject of the first photo of a band on the Web.
“Back in 1992, after their show at the CERN Hardronic Festival, my colleague Tim Berners-Lee asked me for a few scanned photos of “the CERN girls” to publish them on some sort of information system he had just invented, called the “World Wide Web”. I had only a vague idea of what that was, but I scanned some photos on my Mac and FTPed them to Tim’s now famous “info.cern.ch”. How was I to know that I was passing a historical milestone, as the one above was the first picture of a band ever to be clicked on in a web browser!”
Who knows what financial value “ Les Horribles Cernettes” will have in the future but take a look at the following photos and place a value on them (answers at the bottom of the page):
1. Just a holiday snap or something more valuable? Shot by Dmitry Medvedev in 2009, the Tobolsk Kremlin is the sole stone Kremlin in Siberia.
2: Business as usual: The Chicago Board of Trade, 1997, taken by Andreas Gursky.
3: An Arab Summit? No, the Kuwait Stock Exchange, 2008, another by Andreas Gursky.
The Independent, in a December 2014 article on Australian self-acclaimed fine-art photographer Peter Lik who had just sold a photograph taken in Antelope Canyon, Arizona for more than £4 million (the most expensive photo in history), quoted Martin Parr, the renowned British photographer: “I’ve never even heard of him. It’s pretty astonishing. I’ve looked at his work today and though he’s a very good commercial photographer who can take pictures people like, he has no standing whatever in the fine-art world that I belong to.”
Michael Hoppen, a leading British photography gallerist, says in the same article: “It’s an abomination. I remember when he sold the picture [another by Lik of a man in snow by a river. Ed.] in 2010, my jaw dropped. I thought, who could be persuaded to part with $1m for a piece of tat? You could have done it with an iPhone.” Perhaps Peter Lik did!
But it’s one thing to take photos that could end up being worth millions, it’s quite another what we do with them after they have been taken. With analogues photos we have hard copies, but digitised images are a very different matter.
I’ve commented in the past about the need to adequately protect our digital assets, and that need is getting ever greater. Apple, Google, Twitter and others have announced that they intend to introduce strong encryption measures into their products and services to safeguard against surveillance overreach by government agencies and others. This could mean that photos stored in smartphones, tablets, in cloud storage etc., are lost forever in the event the owner of the images dies.
In their 2013 report regarding individuals’ digital assets, PwC wrote that 25 percent of respondents claimed that nobody would be able to access their digital content after their deaths (because they are not doing enough to protect the digital assets they value).
But even if they are not lost, who is entitled to the images: the person inheriting the device where they are stored or someone else? It is very difficult for traditional estate planning vehicles to handle the issue of unmanaged digital assets, so it’s important for lawyers to provide the right advice to their clients so that the digital property they value is properly addressed and taken care of.
And just how valuable are the photographs above? Each sold for the following:
If you have a valuable digital photograph or photographs you would like us to keep safe, please do get in touch!
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.
In 2013, Google launched it’s Inactivity Account Manager and at Planned Departure we crossed our fingers in the hope that other companies would start following suit. Which is why we are delighted to see that Facebook has followed the steps of Google and now offer this control to the user.
These steps which both Google and Facebook have taken are heading in the right direction, however, they are not sufficient. Our digital lives go way beyond the remit of Google and Facebook, who are obviously important but who in effect are only a minor part of our digital presence. Think about other online services we use – from communication to financial transactions, we now use numerous services which have become intrinsically tied to our day to day lives.
We should definitely have a lot more granular level control on what and how our accounts should be operated after we pass away. Like any other physical asset, as a creator of these digital assets, we should have the ability to specify who should get access to these accounts and what they should do with them.
People have the right to distribute whatever they own from their physical world, why can’t they do it from the digital world? This question and the problem we faced led us to the development of Planned Departure in the first place.
It is nice to see that mainstream organisations have now followed our lead and are solving this problem for their platforms. However, for an individual, we suggest they should think about their entire digital presence – not just Facebook and Google.
It is important to think about all the digital assets we possess, assign right beneficiaries for them and leave clear instructions for each and everything. It is important to have a planned departure in this digital age – otherwise, our data would stay locked or lost in this cyber-world forever!
With digital art starting to dominate the art industry, it’s safe to assume that some artists may have numerous art pieces, complete and incomplete that need to be organised and saved securely, especially in the case of something happening to the artist. His friends and family may not know where all these art pieces are or what the artist in question would like to do with them