Posted by Mandy Casavant, Senior Associate
I leave all my assets to my spouse, and all my data to be managed by…?
Life used to be so simple. A person would die and their house, bank accounts and shares were all easily identifiable. The house would contain drawers of private letters and photographs, all dealt with by the Executors of the Will. But now, a person dies receiving hardly any hard copy post. Their life is charted in the on-line ether. A whole life is recorded in Facebook check-ins, Instagram images, Tick Tok videos, and banging playlists.
The Will appoints named Executors, who are usually trusted individuals who are good at dealing with finance and trusted to pass assets to beneficiaries as outlined in the Will. But our affairs do not end with these tangible assets; we are now so rooted to an on-line presence that we all should turn our minds to what should happen to our data. It is just that though – data.
But data is power and with power comes responsibility. There is emotion in photographs and deep joy in hearing a deceased person singing in a video. Within that data will also be messages – texts, emails, chats – some of which may be extremely private. What should we all do about our digital afterlife? We will amass so much data, and really ought to consider what should happen to it; but more importantly who should control it.
Digital assets are normally accessible through accounts set up by the individual using the services of an Internet Service Provider (ISP), for example, Google, Microsoft, Yahoo!, Facebook, Apple and Twitter. When creating an account, the individual account holder signs up to the standard terms and conditions of the ISP, which cannot be varied or negotiated.
Some terms and conditions do not provide adequately for what will happen to digital assets stored on an account after the death of the account holder. The most common options offered are:
- Termination of the account and deletion of all information stored on it following a period of inactivity.
- Selecting a nominee who will be allowed access to the account following death.
- Permission to access content on production of a grant of probate, death certificate, other evidence of death (such as a newspaper obituary), and verification of identity and relationship with the deceased.
- Memorialisation of content for a brief period of time following death after which information is deleted. ‘Memorialisation’ meaning that the account is secured then prevented from coming up in notifications or friend suggestions.
Picking the right person
My advice is to consider a separation of powers; Executors to deal with your financial assets and other Executors be given the power to access, use and control your digital devices for the purpose of accessing, modifying, deleting, or transferring the digital assets.
Who should you choose? Personally, my choice of Executor for my assets would hold a very different skill set to my choice of Executor for my digital assets. I may be happy for my brothers to deal with my assets; but only close friends should deal with my digital assets, for example.
For an individual, you firstly need to consider what you have so someone knows what to be looking for after you have gone. Consider what should be kept and what should be deleted. The choice of Digital Executor is vital. Next is not only mapping out what you have and identifying what you are content to happen to it; and more importantly what you are not content to happen to it.
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