A Digital Legacy – What Happens With My Life Online?

It has been a question I have been wondering about for some time now. What happens to all the records I create during my life which exist only in technology?

Well there is no real guidance from the Government by way of legislation In Australia and the courts are not too sure either. As a result, I want to draw this issue to the attention of my clients especially given the password protected environment we live in. What are our “digital assets” and how can we secure them after we die? Because of the lack of clear legal structure, people should take careful, practical steps now to ensure their online access, material and data are appropriately set up and secured to ensure they can be protected after they have passed away.

Digital assets have a multitude of forms and no expiry date.

As technology continues to evolve, so too does our online presence. Profiles on Facebook, LinkedIn, and Twitter, to name just a few, now record our lives (both private and professional) as well as our thoughts, opinions and achievements in real time. While barely heard of just ten years ago, these and other social media and online platforms are now an integral part of the lives of a significant proportion of the population.

As a result, almost all of us will have accumulated digital assets in some form or another. In addition to social media profiles, we have email accounts such as Yahoo! and Gmail, online storage accounts such as iCloud and Drop Box, financial accounts or payment services accessed through online banking, and photo storage accounts like Flickr. This list is far from exhaustive and will continue to expand as further technological advances are made.

Unlike human beings our digital assets do not have an expiry date and in some cases our online life can live on in perpetuity. The challenge then presented is who should have access to, manage, and deal with those digital assets once we are gone?

The question of who should be given post-mortem access to digital assets is of particular importance in the context of estate planning and administration. An executor of a deceased estate may have entirely legitimate reasons for seeking to access digital assets.

Some, such as online banking accounts, can hold vital information such as account and credit card details necessary for the proper administration of the estate. Many digital assets, such as Paypal and Ebay accounts, can contain funds of significant monetary value which the executor must collect for distribution. Others, such as Kodak online photo accounts, might hold sentimental value and will be images and messages which have significant emotional value for family members.

However, dealing with digital assets may not be as simple as leaving log-in details with a third party. This can be both inconvenient and frustrating to the executor or family member charged with the responsibility or desire to take control of the accounts. Pending the development of legislative guidance or clear case authority, it seems the most sensible action for testators to take is also the most practical. An effective digital asset management plan might involve the testator:

• Making a list of the testator’s digital assets and online accounts, including every website on which the testator has an online presence.

• Making a record of the user names and passwords to each account, including answers to any security questions which will allow for the password to be bypassed or changed. This information will be kept separately from the testator’s will, perhaps in a safety deposit box or in a sealed envelope to be stored with the testator’s solicitor and updated from time to time.

• Ensuring the testator’s will contains a specific clause to allow for the testator’s executors to access some or all of the testator’s digital assets (as defined in the will) which refers to where the full list and password information can be found. The testator might also consider appointing a separate “digital executor” who is more comfortable with technology.

• Leaving explicit instructions as to how the testator wants their digital assets to be dealt with. This will involve, for example, consideration of whether the testator really wants family reading their personal emails or accessing other personal information, or whether the testator simply wants all online accounts to be deleted.

Check the rules for Facebook, Yahoo and other providers to see how access is obtained and who owns your information.

Business Succession and Property

Each business will have its unique requirements.

I assisted some clients in relation to a business succession agreement for four partners in a successful business.

At the time of formation of the original business entity, there was a simple husband and wife team. Over the years, the business grew. They were joined by their management executive and they sold shares in the company as a result.

The business expanded again and they sold a further tranche of shares to another key management person.

During the expansion phase they also had the opportunity to purchase the business real property from which the business was conducted.

As it was around the time of the last manager’s buy in, he could not afford to purchase an interest in the property as well.

So the end reality was four business owners and three property owners.

They acquired the property in a separate family discretionary trust as tenants in common in one-third shares each. A commercial lease was established between the business trading entity and the three trusts as owners of the property.

All simple so far…

The question arose as to how to deal with the property interests upon death of a principal in the business.

It is a simple matter for the one that did not buy in, as it is simply the value of his interest in the shares of the trading entity. However, when it comes to the buy/sell agreement for the three that have an interest in the property, this was a completely different matter.

The issues are

  1. Does the deceased business owner need a continuing interest in the real property
  2. Is there a greater inherent value to the property in light of the commercial lease linked to the business
  3. Should the principals be able to leave the property interest to their family in their estate as a separate matter from the business
  4. Does the buy/sell agreement take account of the goodwill attached to the business premises?

These questions were more difficult to answer than I first thought. It was always a regret of the last owner to buy in that he did not acquire an interest in the property as well. It may be that this is dealt with separately and there is no requirement to sell down the interest in the property.

In the interim, a solution was reached so that the value placed upon the business had a recognition of the business premises, pursuant to the long-term lease in place with the current owners.  A simple buy/sell agreement was prepared to allow for self insurance of the principals in the business.

Further, self-owned policies were put in place for the property ownership via the family trusts. It was an issue as to how the mortgage facility was structured and the parties are considering a variation to the agreement that governs the holding of the property. I have recommended that this be included in the buy/sell agreement, to allow the continuing owner that presently does not have a share in the property, a right of first refusal to buy that interest of the departing principal.

All sorted, for now…

ATC Digest Edition #86