If you were to die tomorrow, would your family be able to access your digital photos and emails? Beyond the sentimental stuff, what about online investments, share portfolios and accounts they may not even know about? And have you thought about whether you want your Facebook posts and LinkedIn profile to live on once you’re gone? Juliet Rowan investigates our so-called digital legacy and finds she’s not alone in falling short of a plan.
I don’t consider myself a prolific Facebooker so I’m kind of surprised to look at my activity log and see I posted, commented, replied and liked 10 times yesterday.
If that’s an average day, that’s 3650 bits of Facebook babble a year.
Over a lifetime, that adds up to lot of babble and assorted images in cyberspace.
The question is, do I want others to see that stuff when I’m gone?
The answer for me is probably not, and same goes for the 1105 tweets I’ve posted on Twitter and the 23 photos I’ve put on Instagram (shameful total I know by Kylie Jenner standards).
Like my Facebook page, my Twitter and Instagram accounts have pathetically meagre followings and a negligible chance of ever rocking the Twitter- or Insta-spheres. Really, they are of zero interest to anyone.
My children may, perhaps, want to search my Facebook page to see what they did on an 18-month OE in Europe when they were toddlers.
At the very least, they’d be able to marvel at how cute they were running around Paris and Siena, and know how much I revelled in their cuteness from my saccharine posts.
When I got divorced, I became obsessed with changing all my passwords, and the one I came up with for my laptop is a doozy.
I’ve purposely kept it secret from my kids to stop them getting on the laptop to watch YouTube, but I’m sure it would be frustrating to my family not to be able to log on if I carked it suddenly.
The kids know how to unlock my iPhone, but they don’t know my Apple ID, and again, nor does anyone else.
Same goes for bank passwords, KiwiSaver, shares, insurance, and even my Asos online shopping account (I do love Asos).
I have no plan for this digital melee, even though I updated my will fewer than three years ago.
The thing is, I’m not alone.
Online appeals on Bay message boards and canvassing people on a Tauranga city street turned up only one person with a digital legacy plan.
She lives mostly in the United States, where arguably there is greater awareness of the issue, or at least her post suggests so with all its archetypal American legal jargon:
“I’m from Tga [Tauranga] but live mostly now in California. What we have done is make a living trust and will, along with a power of attorney and medical directive. Then we put our adult child on our safety deposit box. All the passwords were placed in the safety deposit box for her to get, if and when we decide to travel on.”
There is one other person I found in Tauranga, but he is a solicitor specialising in wills.
Even among his kind, he may be a lone wolf, with one esteemed lawyer revealing he is guilty of having no digital legacy plan.
Chris Moore is immediate past president of the New Zealand Law Society and wrote articles for the society on the need for individuals to consider digital legacy planning in 2012, when he was chairman of its property law section.
When I call him for an interview and mention that I’m worried about my lack of digital legacy plan after reading his articles, he says: “Your ringing hasn’t helped my conscience either.”
Asked if he’s saying what I think, that he has no provision in his will for digital assets, he answers sheepishly.
“No, I don’t,” he says. “Lawyers, to be fair, are the worst. I’m doing very badly on all counts. I haven’t updated my will probably for 30 years.”
Chris admits his will would be “completely and utterly irrelevant” now, saying it was made when his children were very small.
It highlights a plight even the best of us can fall victim to: Failing to make up-to-date provision for our assets when we’re gone.
In the old days, there were just our physical and tangible assets to consider: land, houses, cars, jewellery, et cetera.
Digital assets – things such as social media accounts, digital photos, emails, online stocks, gaming profiles and more – have added a whole new dimension to estate planning.
These assets can also present unwanted obstacles to our heirs if not catered for properly.
“I know from my perspective,” says Chris, “if I drop dead tomorrow, I’ve got all sorts of passwords and all sorts of information that really only I know or I know how to access.”
A former Bay lawyer who practiced in Whakatane for many years, Chris says awareness of the issue of digital legacy is still low in New Zealand.
“I think the biggest difficulty is not that people think it’s unnecessary or irrelevant, it’s just that they haven’t thought about the issue.”
Speaking to people on Tauranga’s 9th Avenue reveals this to be the case, with Omokoroa builder Jonathan Dane saying he has never heard of digital legacy.
Once the concept is explained, the 38-year-old says he will raise it with his lawyer the next time he updates his will, which he does every couple of years.
“I’ve never even thought about this stuff,” the 38-year-old says.
Alice Woods of Pillans Point is the same, writing on Facebook: “I had never thought of that before, guess what our conversation over dinner will be tonight lol.”
In his articles for the Law Society four years ago, Chris wrote that digital legacy was not a major issue yet, but was likely to become one.
He jokes that it is unlike him to be so prophetic but says, yes, his prediction is now correct.
“Virtually just about any interaction that you have involves a digital element. There are so few things now that aren’t digital.
“They are the rarity rather than the digital world. So the key thing will be being able to access this information.”
THE LOWDOWN ON DIGITAL ASSETS
Tauranga commercial and property lawyer Kirsten Murfitt says there are two aspects to digital assets: emotional and financial.
“For the average Joe, it’s probably going to be more about the emotional side, photos and getting access to emails, rather than having huge sums of money online.”
Kirsten says access to digital assets with emotional meaning can be a high priority for families, citing a case in the United States where a father went to court to get access to his dead son’s emails.
“People might go, ‘Oh, it’s just emails’, but as a grieving parent, and [depending on] the circumstances around the death, you might actually want to find out information.”
Chris Moore says families invariably want access to their loved one’s digital photos, and quickly.
“You actually want photos for funerals,” he says.
He and Kirsten say as society becomes increasingly digital, with paperless offices and online share trading, the financial aspect of digital legacy is becoming more important.
“Historically,” says Chris, “you would’ve appointed a sharebroker and you would’ve had pretty detailed records as to shares you bought, shares you sold, income that came in, and it would be pretty obvious to anybody going through your desk that you were using, for example, Craigs as your investment brokers, but now a lot [of people] involved in the share market are involved in online trading and everything may be in the Cloud.”
He says the investment companies often hold all the information for the client.
“You don’t need to hold it at all, so your relatives going through your desk, they could easily miss something.”
Kirsten says online stocks and even online gambling accounts can be sources of income that families may not be aware of or able to access without provision in their loved one’s will.
Kirsten gives personal examples, saying her mother dabbles in online foreign currency trading and she herself has an account she uses to bet on occasional big races in Australia.
“I’ve only ever won 70 bucks; I haven’t won the millions yet;” she says with a laugh, “but that $70 sits in your account and then you can just use it for credit, and some people may actually have a reasonable amount of money there.”
She echoes what Chris says about the fact that the whereabouts of a person’s money may be less clear to executors and heirs in the digital age.
“You’ll go to the deceased’s wallet and see ASB so you know to contact the ASB but what if I’ve got a term deposit with KiwiSaver and all my statements come through my gmail, because I’ve elected not to get paper statements … People just wouldn’t know about it.”
Online accounts or subscriptions could also cause hassles for loved ones, Kirsten using the example of television streaming service Netflix.
“For an older person living alone, family members may not know they have Netflix and they’re actually generating a bill and it’s not being paid, and then you end up dealing with creditors as well, which is probably not something you feel like dealing with when a loved one’s died.”
Credit card details were stored on online shopping sites and without knowledge of those accounts, they could not be closed, while Kirsten says people often overlook the fact that digital music and movie collections are assets.
“We pay a huge amount of money to download music if you’re doing it the legit way, and some of that stuff may not actually be transferable across to the executor. If you leave passwords, people can get in there and deal with it.”
More on the importance of passwords later.
LEADING BY EXAMPLE
Simon Gyenge is a solicitor at Tauranga firm Lyon O’Neale Arnold who specialises in wills.
The 25-year-old is bucking the trend among other locals spoken to and has provision in his will for digital legacy.
Simon says he has appointed his executor to deal with his digital assets and discussed his wishes with the executor.
“What happens to my social and business networking accounts is important to me, along with ensuring my executor can access my financials and tax information, which is all held online now.”
Simon says most people in today’s world have a significant digital footprint and he advises making provision for digital assets.
“Whether or not [the assets] have value isn’t necessarily the thing, but it comes back to when you pass away, you’re leaving behind a digital footprint and digital assets that aren’t necessarily dealt with well under the traditional will.”
Lyon O’Neale Arnold featured an article on digital legacy in its latest client newsletter and Simon says the firm discusses the issue on a case-by-case basis with clients, particularly those with a large online presence.
“It’s something we’re raising with them and just trying to establish whether they need someone separate to deal with the online stuff or whether the person they’re appointing as their executor is going to be able to manage it and [also] making sure they’re telling their executor what they want to happen.”
Simon says it is good to appoint a digital executor who is tech-savvy, although he is yet to see a case in New Zealand where an executor has been denied access to a deceased’s digital information.
“Generally, the executor has ability to access things online by the nature of them administering the estate but the issues that might arise, they might not be tech-savvy, might not know how to access everything and they also may not know exactly what they’re trying to access.”
Simon says he believes the issue of digital legacy is becoming bigger, saying Facebook is a classic example.
“Some people want their Facebook page kept up as a memorial page and some people would want it taken down straight away, so that’s an example of something that can be stipulated either in their will or to their digital executor.”
He says different digital platforms have different requirements in terms of allowing executors access to information, some requiring a death certificate and others probate or evidence from the court that the executor has authority to act on the estate’s behalf.
Simon says with digital assets, it is important to remember they won’t disappear on their own.
“They might time out after a year or two but things like Facebook, they require action on behalf of someone left behind.”
PASSWORDS ARE KEY
Love them or hate them, passwords are crucial to the whole issue of digital legacy.
Chris Moore, despite his acknowledgement of having a whole lot of passwords no one knows, says the difference between executors having them and not can be huge for bereaved families.
“If you’ve got all the passwords, it’s just so much easier and faster. And the other thing is, it’s cheaper because if people have to spend a lot of time trying to find all these assets it wastes a lot of time and money.”
Without knowledge of online accounts, bills could start rolling in for things that aren’t needed but which have already been supplied.
“And again, if you had all those passwords, it would be very easy to go straight on to sites, be able to send emails immediately to say, ‘Please cancel such and such. This person has died on this date’.”
In April, overseas media reported the case of an Italian architect who wrote to Apple pleading with the company to unlock his dead son’s iPhone.
Leonardo Fabbretti didn’t know his son’s password and was unable to access photos and messages on the phone after his son died of bone cancer at age 13.
Apple refused his request on privacy grounds.
Chris says the case highlights what can go wrong without passwords.
“If you had the password, there’d be no issues; you’d get straight into the phone and download the photos. If you don’t have that, then you have to go to the provider, and first of all, there might be delays … and then the second thing is, there may be an argument as to whether the executors are entitled to the information.
“You just don’t want to get into that sort of thing. All those ifs and buts just disappear if you’ve got the password.”
WHERE TO STORE PASSWORDS
The issue of where people should store other online passwords for their executors is a tricky one.
Kirsten and Simon say safety deposit boxes are an option but may not be practical for everyone.
Simon says leaving an entire list of passwords with your lawyer is now considered “old school” but one option is providing just one password for an email account, which the executor can then use as the contact address to change passwords on other digital accounts.
Another method is simply to tell the executor the relevant information.
“I have this conversation often,” says Simon. “If you’re trusting someone to deal with your affairs when you’re dead then it’s really positive to have faith in them when you’re alive that they won’t do anything with the information you give them.
“And the more they know when you’re alive, if they have questions or worries or concerns, they can raise them with you and it makes it easier when you’re gone.”
Online portals where passwords could be stored still presented a problem because they required passwords themselves.
“It’s a never-ending circle of how do you inform so, as I said, the best way is communication.”
Simon adds that although it is always good having the relevant information at your lawyer’s office, “if the family and your executor don’t know what’s going to happen, it can become very stressful very quickly for the people left.”
All three lawyers caution against writing down banking passwords saying it is prohibited by banks and to do so is breaching legal terms and conditions.
Kirsten says it also represents a security risk, particularly if the passwords are stored at home.
“What if there was a burglary?”
APATHY GIVES WAY TO ACTION
Kirsten runs her own law firm at Pyes Pa and says she now raises the issue of digital legacy planning with any client writing or updating a will.
She says some are initially dismissive, believing digital assets to be limited to Facebook and other social media.
But after gaining an understanding of the issue, she says about half wish to include digital legacy clauses in their wills, while others are not fussed.
A client heading overseas had come to update her will the previous evening, appointing one executor to deal with her physical assets and her daughter to be her online executor.
Kirsten says while not everyone may consider digital legacy important, she encouraged people to be open on the issue.
“If you’re making a will or you’re coming to review your will, I think you should just turn your mind to it and just go, ‘It’s actually more than just my Facebook account. There’s a few things I need to deal with’.”
For those feeling concerned about their lack of a plan, the Law Society has a digital legacy checklist people can consult as a starting point.
However, the society also advises of the need to consult a professional.
So is Chris Moore going to update his will?
“I might send myself a reminder to go and grab it from the deeds packet at work and see what it says,” he says with a laugh.
As for me, I’m putting in a couple of calls to my sisters and mother, and sending an email to our family lawyer to let him know where to find my passwords.
Even if it’s just so they can get me off Twitter when I’m gone.
CREATING A DIGITAL LEGACY PLAN
Step 1: Create an inventory of your online accounts.
It can be helpful to prioritise lists by importance. Among the accounts you should include are:
– Banking and other financial sites
– Email accounts
– Social media sites such as Facebook, Twitter and Instagram
– Photo sharing sites such as Picasa
– Online backup systems
– File sharing services such as Dropbox
– Financial sites such as PayPal
– Shopping sites such as Ebay and Amazon
– Media sites such as Netflix and YouTube
– Frequent flier and travel sites
– Any other online sites to which you belong
Step 2: Document how you want your online accounts handled.
An example of the type of decision you might include in your list of instructions is whether you would like to have your Facebook account deactivated or kept on as a memorial to your life. For photo accounts, would you like the photos to be forwarded to a loved one or should your account be deleted?
Step 3: Decide who will handle your accounts.
Deciding who will take care of your online affairs is an important part of your plan. Your digital executor should be someone you can trust. You should consider the maturity of the person you choose as well as their ability to handle sensitive information. Technical savvy is certainly an added plus.
Step 4: Find a safe place for your information.
Once your list is complete find a secure location to store your list. For security purposes, consider storing your list of assets and your list of passwords in a separate locations. Make sure your family or executor knows how to find your information.
Step 5: Keep your list up to date.
Since online accounts and passwords can frequently change, it may be tempting to create a list and forget about it. But it is important to re-visit your inventory and instructions from time to time in order to make sure the information is up to date when it is needed. Setting an annual or biannual review can be a good way to monitor your accounts.
DO YOU CARE ABOUT DIGITAL LEGACY?
Bay of Plenty Times Weekend spoke to people outside Love Rosie Bakery on 9th Ave in Tauranga to gauge awareness of digital legacy and found although some would want their Facebook page deleted when they die, most were unconcerned about their online presence once departed.
Beck Lister, 36, Matua
Matua mother-of-two Beck Lister knew the term digital legacy, but was not worried about the footprint she would leave behind and did not feel the need to make provision for it in her will. “I’m going to be dead so I’m not going to care,” the 36-year-old said. “And the only thing I have is social media, which isn’t that important.” She said her husband knew her Facebook password and would be able to deactivate the account if he chose, as well as access any of her other online data.
Stacey Wilson, 26, Greerton
Stacey Wilson of Greerton also worried little about her digital legacy, saying she was “not much of an online person”. However, asked if she would want her Facebook page to remain active when she was gone, the 26-year-old said: “I probably would want it closed.” As for any other information online, Stacey also said it was able to be accessed by her partner. “It’s all shared because we have a business.”
Jonathan Dane, 38, Omokoroa
Jonathan Dane of Omokoroa was not aware of the term digital legacy but was interested to hear. “I’ve never even thought about this stuff,” the 38-year-old builder said, adding that he updated his will every couple of years and would raise it with his lawyer at their next meeting. He had no online investments but had a Facebook account he rarely used and would want closed when he died. “I hate social media,” he said with a laugh.
John Dinneen, 69, and his wife, Judi, 68, of Papamoa
John and Judi Dinneen of Papamoa updated their wills in February and said digital legacy was not something their lawyer had raised with them. Even so, Judi, 68, said it was unlikely they would need it included because John did not use computers and her only activity online was emails to friends. Asked if she would want her family to be able to access the emails, she said: “No, I don’t keep information there as such. It’s just everyday things.” Digital photos were not an issue either. “We still keep hard copies of things. We do have [digital] photos, but we just download them and I scrapbook,” Judi said.