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Your digital afterlife

 

February 2015

As we increasingly move our lives into the online sphere, our digital estates are growing in size and significance.
Do you know what will happen to yours?

 

 

 

 

It was barely an issue 10 years ago, but digital assets are becoming an important consideration for estate planning – writes ANZ Private’s Head of Estate Planning, Claire Hausler.

Few people could have imagined how much technology has changed our lives over the last decade. It wasn’t that long ago that we shopped at record stores instead of iTunes, browsed book stores instead of Amazon, and phoned our friends instead of messaging them on Facebook.

As a lawyer, keeping up with the pace of change is challenging. Laws written last century didn’t necessarily cater for digital assets. And while there’s yet to be a major legal battle in Australia on this topic, there has been in the US.

One of the more famous cases is Facebook vs Stassen. Benjamin Stassen was the 21 year old son of Helen and Jay Stassen. He committed suicide without leaving a note. When Helen and Jay could not find any cause as to why Benjamin took his life, they sought access to his emails and social feeds for some closure.

You might be surprised to hear that Gmail and Facebook would not give the parents access to his account, as they saw it as their duty to protect Benjamin’s privacy. The Stassens therefore took legal action and obtained Court Orders requiring Facebook and Gmail to provide access.

This case is a good example of some of the thorny issues we now need to consider with estate planning.

Living in two dimensions

In the “new world”, you now have two dimensions to your life:

  1. Your physical life – where you accumulate and look after assets, for example your house, car, bank accounts.
  2. Your digital life – which consists of assets associated with your computer and online accounts, or any other internet interests you may have.

The scope of your digital life is rapidly expanding, as you collect and create online data through the likes of Facebook, LinkedIn, Google Plus and other social networking sites. You also have emails and accounts such as eBay that contain all types of secure and confidential information.

So what happens to all of your digital assets and information after you’re gone?

Your computer and its hard drive might be inherited by your kin, but what about the emails you have stored with Hotmail, Gmail and other service providers? What about the thousands of images you have uploaded to Flickr? And who will get their hands on all the albums and movies you’ve uploaded to the cloud?

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Protecting your digital assets

Cases like Facebook v Stassen have forced people and digital providers to start thinking about digital assets and how to deal with them in case of death.

You might have heard that Facebook introduced the ‘legacy contact’, which allows you to nominate someone to pin announcements about memorial services, approve friend requests and change your profile and cover photo (which could be helpful if you don’t want to be immortalised in fancy dress!).

As an owner of digital assets, a prudent approach is to speak to your lawyer to ensure that you clearly set out your intentions for both your physical and digital assets.

For example, you might want to instruct who gets your music and movie collections. It’s also a good idea to keep all the records of purchases in one place, so people can know the exact value of these collections after your death.

Know what you’re leaving behind

One of your primary estate planning goals is to avoid problems for your next of kin and other beneficiaries when it comes to the distribution of your estate.

While there have been no test cases in Australia yet, we know that digital assets are very real, and they should be considered with your lawyer as part of your comprehensive estate plan.

 

To discuss what this insight could mean for you, talk to your ANZ Private Banker directly, or contact us below.

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