Tuesday, October 13, 2015

Why your Facebook account needs to be included in your Will

The Internet has changed the way we live. Technology has taken over our lives in many ways and most of us are a tangled mess of emails, smartphones, iPads and laptops. We use technology for almost everything we do—our morning alarm, daily calendar, correspondence through WhatsApp, emails and SMS, bank accounts and social network accounts. This dependence on the Internet has given us something new to think about—dgital assets. During our lifetimes, they afford us the luxury of being able to do almost everything on-the-go and immediately. But what happens to these assets when we pass away?
Justin Ellsworth died while serving in the US armed forces. His father, appointed personal representative of his estate, sought access to his Yahoo account to make a memorial for him. Yahoo has a policy of not sharing passwords and refused to co-operate.
When Helen and Jay Stassen’s 21-year-old son, Benjamin, committed suicide, the Stassens went searching for answers. They found themselves engaged in a conflict with Facebook and Google. Both companies refused to give them access to their son’s account.
In both these cases, the families had to resort to getting a court order for access to information. These cases highlight the uncertainty about privacy of people’s digital lives in the event of their death.
What are digital assets?
Historically, a person’s estate consisted of a Will, trusts, life insurance policies, and any property that a person owned, including financial accounts. While many people manage their finances, business, and personal lives online, only a few have organised or centralised their online accounts. This can make managing and distributing these assets difficult after the person has died, and can lead to confusion for family members, denial of access, and even an inability to locate the accounts or information in the first place.
What happens to the many posts you made on social networking sites if you die or become incapacitated? What about the emails you stored with various service providers? What happens to the thousands of images you have stored on your Flickr or Instagram accounts? Maybe you run a website or a blog or an online business. What about registered domain names and libraries of movies, digital music and e-books that can be of significant value? Even closely held companies have information that is digital: banking records, documents, spreadsheets, personnel records, domain names.
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 executors of the Will to sort through them all. A digital estate plan is a plan for the succession of your digital assets. It can help your family locate and access any accounts you have online. With the launch of the Digital India campaign by Prime Minister Narendra Modi, our daily involvement with the digital world is only going to rise.
What happens to digital assets without any plan?
It’s almost always in the terms of service of every digital company to not share your account information with anyone other than you. Most companies are aware of the trust placed in them, and take their responsibility to protect the privacy of people who use these services seriously. Companies like Google, Twitter and Outlook may provide content from the account on the receipt of relevant documentation but will not provide passwords or other mechanisms that would enable anyone to log in to a user’s account. Google also goes a step further with “Inactive Account Manager,” which is a way to either share or delete the account after a set period of inactivity. Others like LinkedIn will remove the account without transferring data to related family members. Facebook gives you two options—you can either delete your late family member’s account or to memorialise it. It will not transfer the account to anyone.
Making a plan for digital assets
Many states in the US have enacted laws incorporating certain online accounts or information into the probate process and are taking steps to enact specific laws relating to digital assets. In India, however, this seems some time away. A number of online companies have also started which allow you to indicate who can access your online accounts when you are no longer alive.
Given the lack of legal clarity in this area, it just makes practical sense to get organised now and to take care of your digital assets, to the extent possible. So, here is how you can do it:
1. Make a plan for your digital assets; you may wish to back up data in an external hard-drive to store photos, e-mails, documents, and other work product.
2. Take inventory of your digital accounts and assets, assemble a list of passwords.
3.Store details in an easy to reach location.
4.Give trusted family members information, instructions and authority so that they know what you have, where it is located, and how you want to dispose of it.
The truth is that today more and more of our lives are online and this will only increase. It is imperative to understand what you keep online and what will happen to it once you are no longer there. Careful planning and organisation increases the likelihood that digital assets are handled in a manner consistent with your wishes.
Gautami Gavankar, principal advisor-estate planning, Kotak Mahindra Trusteeship Services Ltd

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