D.C. Council Member Mary Cheh (D-Ward 3) and Arlington County Board Member Walter Tejada (D) join the Politics Hour crew in the studio.
Did you ever stop to think about what will happen to your Facebook, online banking, email and countless other Internet accounts after your death? The proliferation of both sentimental and economic property online is raising new challenges for estate planners. We explore why you may want to appoint a “digital executor” before it’s too late.
- Naomi Cahn Law Professor, George Washington University
- John Romano Co-founder, The Digital Beyond; co-author, "Your Digital Afterlife: When Facebook, Flickr and Twitter Are Your Estate, What's Your Legacy?"
- Jesse Davis Co-founder, Entrustet
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. It's Tech Tuesday. Okay, let's make a tally of your online accounts. I bet you have at least a couple of different e-mail addresses and maybe a Facebook page. You might share photos online through Flickr or Shutterfly, and maybe you do your banking and pay bills online, too. Now, let me ask you a question. Does anyone else know the user names and passwords for all those accounts or even know they exist? At the risk of sounding morbid, did you ever stop to consider what will happen to your online accounts when you are no longer with us? It's a topic most of us don't want to think about but one with huge significance as we shift both our sentimental and economic lives onto the Internet. The proliferation of online accounts is raising new legal and personal questions about what happens to our digital property after we die and how we can make our wishes known before it's too late. Joining me in studio to discuss -- this is Naomi Cahn. She's a law professor at George Washington University. Thank you so much for joining us.
MS. NAOMI CAHNMy pleasure. Thank you.
NNAMDIAlso with us is John Romano. He is co-founder of The Digital Beyond and co-author of the book "Your Digital Afterlife: When Facebook, Flickr and Twitter Are Your Estate, What's Your Legacy?" He joins us from the studios of WUNC in Durham, North Carolina. John Romano, thank you for joining us.
MR. JOHN ROMANOThank you very much.
NNAMDIAnd joining us by telephone from Santiago, Chile, is Jesse Davis, co-founder of Entrustet. Jesse Davis, thank you for joining us.
MR. JESSE DAVISThanks for having me.
NNAMDIYou too can join this conversation on Tech Tuesday. 800-433-8850. Or go to our website, kojoshow.org. Join the conversation there. Naomi, I imagine the biggest hurdle for any kind of estate planning is getting people to think about their own mortality and plan ahead, but the Internet does add a new twist. For instance, I understand that you have an uncle who did not make arrangements for his Facebook account. Tell us that story.
CAHNMy uncle was an engineer, and for several months after his death, when I went to my Facebook page, I was invited to become his friend even though I had just attended his funeral. It was a bit eerie, and clearly, he, like so many other people, had just not thought about what would happen to his online accounts when he passed on to the digital and real-life beyond.
NNAMDIWhat eventually happened with that?
CAHNIt's still there.
CAHNI need to talk to one of his children who's a lawyer about this, but it's not surprising since so -- as you said, so many people don't have wills, don't have powers of attorney, don't engage in any planning, and even if they do, don't even think about these issues.
NNAMDIJohn Romano, do the big social network sites have policies for handling accounts after people die? What is Facebook's policy, or for that matter, Google's?
ROMANOFacebook actually has a pretty developed policy for deceased people. You mentioned that, I guess, your uncle had passed away. You would be free to go out onto Facebook today and report his Facebook profile as memorialized or even deleted by using their report a deceased person's profile form, and it's something that you can get to or find with simple Google search, and it allows you to say this person is no longer here. And that actually would prevent Facebook from showing you your uncle in, like, hey, get to know this person, get in contact with them again, all those sort of unpleasant reminders that Facebook can sometimes have for the loved ones left behind.
NNAMDIBut don't you have to offer some proof that the individual is deceased? I have a lot of friends who would probably do that as a joke.
ROMANOWell, right now, Facebook's form says proof of death is an obituary or news article link. So that's all they're asking for right now.
NNAMDISuppose there's no obituary, suppose there's no news article link, do you have to actually mail something from maybe the funeral proceeding to them? Would that work?
ROMANOI suppose it might. I guess, they're probably gonna take it on a case-by-case basis at that point.
ROMANOYeah. They're -- right now, there's no -- this form is all they have right now.
NNAMDII don't think they can take it on your word. Jesse, can you tell us about the court case involving a Marine who died in Iraq, Justin Ellsworth, and how his story motivated you to start your company Entrustet?
DAVISSure. So -- Yeah. A few years ago I was reading "The World is Flat" by Thomas Friedman -- a great book -- and about halfway through the book, Friedman tells the story of Justin Ellsworth, who's a U.S. Marine who was killed back in 2004, and after Justin passed away, his parents wanted access to his Yahoo! account. So they asked Yahoo! for access. Yahoo! said no. It's against their terms of service, and the family actually ended up taking Yahoo! to court. And about three months later, a judge turned around and said, Yahoo!, hand over the contents of Justin's account to the parents, and Yahoo! actually physically handed -- or maybe mailed the parents CDs containing all the contents of Justin's e-mail account.
DAVISAnd, you know, that sort of set off the light bulb -- actually, Friedman says in the book -- after telling the story, he says this is -- seems to be a big mess. Somebody please help sort all of this out. And the light bulb went off. I admittedly never finishing reading the book. I've been working on solutions ever since. I guess the light bulb that went off was, you know, if, God forbid, something were to happen to me, maybe I wouldn't want my parents getting my e-mail account, maybe I would want it to go to a friend or another loved one or maybe I had wanted it deleted altogether. So that was sort of the inspiration for starting Entrustet.
NNAMDIIs that Tom Friedman on the line saying, please, finish my book, Jesse?
DAVISOh, this is -- yeah, Tom Friedman, if you're out there listening, or if anybody who knows Tom Friedman is out there listening, I've been trying to get this story out in front of your eyes for a while now. That book -- that line in that book actually directly ended up changing the next two or three or maybe more years of my life, so if you are out there listening, please, call in.
NNAMDIFor everybody else who maybe listening, have you or a family member had to deal with the digital identity of a loved one who passed on? Did you encounter any complications? How did you deal with them? Call us at 800-433-8850, or you can go to our website, kojoshow.org and join the conversation there. John, how did you and your partner decide to start thedigitalbeyond.com website as a sort of clearinghouse for information about digital estate planning?
ROMANOI started thinking about it when my son was born about the same time that my grandfather died, and the process of clearing out his house, we were looking at all of his photos and all these objects of his that I realized from my son were always gonna be digital. These are born digital assets -- things that were never seen a piece of paper or a piece of film. And I was -- it just got me thinking, and I met Evan. And Evan had some personal experiences himself that sort of got him thinking about this. So we started writing about it, and we've actually presented a few times in South by Southwest about the topic. And that got us thinking about it. Actually to Jesse's point earlier, Yahoo! who was the provider for the Ellsworth case, they haven't changed their terms of service. Their terms of service still says that if they get a death certificate, they will terminate the account and delete the contents. And that's still their policy to this day. And...
NNAMDILet's take -- go ahead, please.
ROMANOI was gonna say the, you know, Flickr, which is an online photo provider, is owned by Yahoo! and runs by the same terms of service. So effectively, if, you know, somebody provided, you know, a person's account with a death certificate, you could see a lifetime of photos go and get deleted.
NNAMDIHere is Naomi Cahn.
CAHNJust to add to what you just said about Yahoo!. There -- whenever we sign up for new Internet providers, whenever we sign up for new services, there are terms of service that many of us probably just click through by saying I agree, and as you pointed out, Yahoo! specifically discusses what will happen upon receipt of a copy of a death certificate. And it also says that a Yahoo! account is non-transferable, which means that legally allowing anybody else to access that account is contrary to the terms of service with Yahoo!.
NNAMDISo that means that not only is it non-transferable, but if on a person's demise, one presents a death certificate, then all of that information is necessarily lost?
CAHNAll of the -- that's what the terms of service would say. Once the account goes out of existence...
CAHN....Yahoo! says your account may be terminated. Now, what some people do is give, of course, give other people access to their accounts by giving them their online passwords, and that's a different issue altogether.
NNAMDIJohn and Jesse, let's look at the different types of online accounts people may have and how best to handle them. Well, I'll start by going to the telephone and talking with Shirley in Washington. Shirley, you're on the air. Go ahead, please.
SHIRLEYHi there. My partner passed away in August, and his AOL mail account is still open, and I was wondering how I go about canceling that out? I do have his passwords, so I am able to access it and see all the mail that continues to come in.
ROMANOLike Naomi said earlier, every service provider is gonna have their own process for this right now, which is actually, to me, is something that's a huge problem. You know, users, like Shirley, everywhere -- every account she's gonna go to is gonna be different, and every account, she's gonna have to dig into those terms of service and dig in and do searches. And unfortunately, right now, that's the only way for users to go. So right now, Shirley, unfortunately, you’re gonna have to go out and start with a Google search and find out what their deceased user policy is and work with them directly, probably giving them and providing them the death certificate as well.
SHIRLEYIt's AOL. The e-mail account is with AOL. Okay. And Google them and find out what they require to close the account out.
ROMANOI will say before...
ROMANOGo ahead, Jesse.
DAVISI was gonna say actually on the Entrustet blog, there's a resource. At the top, you'll see the digital executor's toolbox. I mean, we keep as up-to-date as we possibly can a list of the major service providers out there, AOL one of them included, and try to keep as updated a list as possible for each individual type of account as far as how to get in contact with the company and what their particular rules and regulations are about transferring accounts. With AOL, you actually can't cancel the account either online or through e-mail. However, you can get in touch with AOL by phone number provided on this digital executive toolbox, and they can try and get in touch with them that way.
SHIRLEYOkay. Well, thanks a whole lot for your information.
NNAMDIShirley, thank you for your call. You too can call us, 800-433-8850. Or you can send us an e-mail to email@example.com. Or a tweet, @kojoshow. What do suggest, John, for accounts that are largely sentimental like Flickr, Facebook and personal e-mail? How best can people handle those?
ROMANOWell, one last note about the e-mail that Shirley is dealing with. Shirley, make sure that before you cancel that account, that any accounts that were created using that e-mail address had been dealt with. So if your partner had a PayPal account, that PayPal account is gonna be controllable through that e-mail account. So if you close that account down, which sounds like it's not possible with AOL, but if you had, you might lock yourself out of being able to control other accounts. As far as the sentimental accounts are concerned, I mean, these are accounts typically like, you know, photo-sharing accounts or video-sharing accounts, and these are things that, you know, the people that come after you really become attached to, especially once you're gone.
ROMANOAnd I would really encourage people to think about them beforehand, and they really need to sort of itemize them and write them down and let people know because when you go into -- like, when I went into my grandfather's house, there's his photo. There's boxes in the closet. You pull down the box, and there's all the photos. A Flickr account could be out on the Web, and it might be completely unknown to the survivors. So I think the first step for people is always gonna be to sort of itemize or, you know, list these things out in some way. And I know Jesse has a, you know, service that allows to actually sort of get really organized and pull that list together in a really structured way. But at the absolute minimum, make sure that people know about them.
NNAMDIAnd we are reminded by a caller who couldn't stay on the line that a person does not have to die. Her husband was in a terrible shape after an accident, and she had to deal with banks and other accounts and could not get access. She says it was a real nightmare. That's why we're having this Tech Tuesday conversation on your digital afterlife, passing on your passwords and other important information. We're gonna take a short break. But you can still call us, 800-433-8850. Do you have a plan for dealing with your digital identity after you're gone? If so, what's your plan? You might wanna share it with us. 800-433-8850 or go to our website, kojoshow.org. Or send us a tweet, @kojoshow. I'm Kojo Nnamdi.
NNAMDIIt's a Tech Tuesday conversation on your digital afterlife with John Romano, co-founder of The Digital Beyond and co-author of the book "Your Digital Afterlife: When Facebook, Flickr and Twitter Are Your Estate, What's Your Legacy?" He joins us from studios in Durham, N.C. We also have in our studio, Naomi Cahn, a law professor at George Washington University. And joining us by telephone from Santiago, Chile is Jesse Davis, co-founder of Entrustet. You can find links to both Entrustet and The Digital Beyond at our website, kojoshow.org. If you have questions -- have you or a family member had to deal with the digital identity of a loved one who passed on? How did you deal with that? Call us at 800-433-8850. The caller who could not stay on the line, Naomi Cahn, talked about somebody who has become incapacitated. So we're not necessarily talking about someone's demise, but how do you plan for whether you become incapacitated?
CAHNAgain, people -- just as people don't think about dying, we don't like to think about becoming incapacitated. And there actually are ways to plan for someone to take over your online accounts when you're incapacitated. Probably about a third of people in the U.S. have something called power of attorney, and you can have a power of attorney that's useful for both health care planning. That is, you say to somebody, I want you to make all decisions related to my health care. And you can also have a power of attorney relating to all of your financial issues. And so you could have a power of attorney that says, I want you -- I designate you my agent or, some people say, attorney in fact, to take care of all of my financial accounts, all of my financial matters. As part of that power of attorney, you can add in, in addition to the various bank accounts, other accounts, I authorize you to manage all of my online accounts. And that way, you can actually give someone else the authority to manage those accounts while you are incapacitated. Unfortunately, the power of attorney expires when you die, so it's not a good death planning vehicle. But it is useful for planning for incapacity.
NNAMDIJesse, some online accounts have an economic value, like stock trading accounts, automatic mortgage paying accounts, online bank accounts, PayPal accounts. What approach do you recommend for those?
DAVISYes. So there are two -- generally two different categories of digital assets like we talked about earlier. There are the strictly sentimental digital assets, and then there are financially valuable digital assets. In the case of Entrustet, we really don't try to protect the brick and mortar financial accounts. If you have an online banking account at Bank of America, realistically, you have an online banking login, but that's tied to the brick and mortar financial accounts. For those types of accounts, it's obviously best to make sure that you have an extensive plan with your safe planner in place. However, there are certain digital assets that do have economic value that are really strictly digital, not tied to brick and mortar types of financial institutions.
DAVISI'll give you one example. If you own domain names on GoDaddy. Domain names go for anywhere from $11 a year to upwards of $5 million. People will pay for different types of domain names. It's kind of like digital real estate, if you will. It's really the digital world's closest thing to real estate in the real world. There's only one domain name out there for each different domain names. So that's a good example. Another good example are, if you have a Second Life account or a World of Warcraft account that can be sold on a second market for a certain amount of money, that's really a strictly digital asset that has -- definitely has significant economic value attached to it. So there are a couple different sort of subcategories with digital assets of financial world. For the ones like GoDaddy and Second Life or World of Warcraft, it's got two options. You can go about it in offline way and write down all your username and passwords on a piece of paper and hand it to someone and say, if something happens to me, here's everything. Or you can use the service such as Entrustet it to do it all online and works in a secure modifiable environment.
NNAMDIJohn Romano, another consideration is the move to paperless transactions. Some accounts do not have any paper trail so a person's survivors might not even know that those accounts exist. What do you recommend?
ROMANOWell, this is, again, we're creating a list of all of your online accounts. It's really that first step, you know. And whether you use Entrustet's, you know, mechanism or something like that or you do this at home with an Excel spreadsheet or even a piece of paper, the very first thing is awareness. So -- helping your heirs be aware of those accounts is absolutely the first step. I would say the power of attorney piece -- or not the -- the PayPal piece, and the things that are strictly digital kind of have a way of working their way into the real world. PayPal is a great example. PayPal might be an account that, you know, is all digital but it actually links to your checking account, and access to it is really a sensitive piece of the -- that financial scene.
NNAMDIOn to the telephones, here is Mike in Tenleytown. Mike, you're on the air. Go ahead, please.
MIKEThank you, Kojo, very much for taking my call. I'm a recent college graduate and one of the comments that I wanted to make that I was so grateful for, I had a very good friend of mine passed away during college. And his parents had access to his Facebook account and on their Facebook account asked his friends to post comments about him and he was just a great individual, a big leader within the church community and within the school. And it was wonderful to be able to see the influence that he had within all of us and all of our friends. And still now, I mean, he passed away about a year ago, I still often go back to this Facebook page and it's still getting updated. You know, people still talk about stories that remind us of him. And so, it is just great to still have that...
NNAMDIRaises an interesting philosophical question, though, Mike. How long do you think a Facebook page like that should stay up?
MIKEI don't see a reason for it to go. I mean, I see things during the -- during my time that remind me of him and it's great to be able to write that there and it's great to be able to see other friend's comments about him.
NNAMDIWhat do you say to that, Naomi Cahn? People who think that you can have a digital afterlife if you keep your Facebook page up or if your relatives or whoever is the executor keeps your Facebook page up forever?
CAHNI think it's really important for the person who created the Facebook page to let other people know what that person actually wanted. And so if, I think his name is Tim, if Tim actually wanted everybody to be able to post on his Facebook page, that would be incredibly important. So for me, the first thing you look at is the individual who created the page and -- or the account or whatever and what their wishes were.
NNAMDIThank you very much for your call, Mike. Naomi, in the past, it was sometimes hard for an executor to find a copy of a person's will if no one knew where it was. Now that seems easy compared with getting your hands on dozens or hundreds of usernames and passwords.
CAHNAbsolutely. Now the problem, there's still a problem with finding the will. But then the problem is, how does the executor, how do the people, how do the descendants, how do the heirs get access to all of these online assets that we've been talking about? And it's -- when people see attorneys for estate planning, it's quite common that the attorney doesn't necessarily mention anything to do with a digital estate that the attorney is focused on the house that might be owned, on bank accounts, et cetera, on tangible property. And so thinking about these issues is something that estate planning attorneys and the estate planning world is just starting to do.
CAHNIf you go online and create your own will with one of the many possible softwares that are out there, then this is something -- you can actually put something in your will about your online accounts. As you said at the beginning of the show, Kojo, because wills are public documents. They're filed in court as soon as you die. Anybody who wants to, for example, can go see Michael Jackson's will. You don't want to put in any confidential information, so you shouldn't put in passwords. You may not wanna put where all of your accounts are.
NNAMDIBut I don't want my executor to have to go to jail for hiring a hacker in order to get into my -- in my accounts and find out the passwords.
CAHNA few states, including, of all places, Oklahoma, have actually passed laws that say that your executor will have access to your online accounts. So it's a trend, although, it's just -- it's a under a handful of states that have started that. In the absence of that, although there are relatively few cases -- the Ellsworth case in Michigan that Jesse talked about earlier is one of the -- just one of the few cases. Outside of that, I would think that most executors should have access to the same property, to the same online property in the same way that they would have access, say, to a house or to a bank account.
NNAMDIBut, John Romano, that Oklahoma law is really a trail-blazing law, addresses access to Internet accounts after the user dies. Can you tell us a little bit more about what the law says and whether there are other states likely to follow suit? John Romano.
ROMANOYeah. The law says that the executor of an estate should have the power to terminate or take control of any online account. And it's actually a real complete game changer in the space, and if -- the question that I have for Naomi, actually is, if you have this law that says this in Oklahoma, but the problem is the Facebook terms of service says that Facebook is governed by the laws of California.
ROMANOHow do those two work together?
CAHNWait, let me just...
NNAMDIOh, wait a second. We have as a part of our agreement here that if a guest asks another guest a question, there is a fee involved for the host of the show. (laugh) So before Naomi answers, have you read the entire agreement, Naomi? No, go ahead, please. (laugh)
CAHNAnd, of course, I have to say this is not legal advice, not binding on -- et cetera, et cetera. But I just wanna say the Oklahoma law is actually quite interesting, because it specifies that, as you said, that the executor has the -- shall be able to control. And then it specifies any social networking website, any micro-blogging or short message service website or any e-mail service websites. So it's quite specific with respect to the types of accounts that are covered. So that's -- I mean, that's what the Oklahoma law says. And it only applies to people who die in or who were -- who die in Oklahoma. So, on the other hand, even though the terms -- even though, a company might not be headquartered in Oklahoma, that other states should respect Oklahoma law when it comes to the rights of the executor. Now, they may not. This is a whole new area of the law.
NNAMDI800-433-8850 is the number to call if you like to participate in this Tech Tuesday conversation. Have you had a family member or have you had to deal with the death of a family member whose digital identity you could not recover? Did you encounter a lot of complications? How did you deal with it? 800-433-8850. Here's Amanda in Arlington, Va. Amanda, your turn.
AMANDAHi. My husband and I have a system where we just -- well, I should say my husband has the system. He's the system guy in our family. (laugh) But we have all of our passwords for every single account we've ever had written down in a roller deck by the name of that account provider. I know some people might be, like, (makes noise) gasping, because you shouldn't write any of this stuff down. But we have our own little system to kind of -- so it's not as obvious as it may seem. And it's hidden in a place. But that has helped immensely. I mean, even for things not tragic, but just, like, when he is not there and I'm trying to talk to -- you know, talk about our account, you know, and they won't let me have access to unless I know his mother's maiden name. So it's all those kind of things. It's really helped.
AMANDAAnd I just wanted to comment. I'm not on -- some of these persons who called about the Facebook page. I had a really close friend die about five years ago, and this was before I was a big Facebook person. But my husband at that time also works for AARP, and he came home and just said, you know, I talked to a vendor today, who sets up this in memoriam sites. And it was the most cathartic thing I've ever done. That night was -- setting up a page for John and I, so all kinds of pictures are on there and that continues to be a way for people that contact me about John that I didn't know about. Because if you Google his name, that page is now the first thing that pops up. And we went ahead and paid for that to just live on and (word?), I mean, a lifetime subscription. And I cannot say how much that has helped me. And I don't go every day anymore. But when I do to see new people who posted things, it's amazingly helpful. So (unintelligible) out a very logistical and emotional kind of tip there, so I just wanna thank you.
NNAMDIAmanda, thank you very much for your call. You, too, can call us, 800-433-8850, if you have tips of your own for protecting your digital afterlife. Jesse, can you explain the types of services that your company, Entrustet, and others like it offer people?
DAVISYeah. Sure. So one of these is, you literally go on to the site and create an Entrustet account. And you can create a list of your digital assets, which basically means all of your online accounts. And you can even upload computer files. And so each individual account, you can add using your user name and password. And you can decide exactly what you want done with each and every individual account. So let's say I have 10 different accounts up there, I can say, I want my Facebook account to be deleted after I'm done. I want my Gmail account to be passed on to my brother. In which case I can add my brother, John, as the heir to, specifically, to my Gmail account, add his information in so that, upon my passing, if God Forbid something were to happen to me, the necessarily user name and password information would flow to John, my heir for the Gmail account.
DAVISWe also add what we call a digital executor, which is the person who's actually responsible for notifying Entrustet of your passing, and then actually verifying the passing with the copy of the death certificate. And then after we verify that, the information gets passed on through the digital executor's dashboard, and they're just clicks away from making sure that information is passed to the necessary heirs. So it's essentially a system for listing all the digital assets and saying exactly what you want to some of them after you're gone.
NNAMDIYou also offer a service, which I find intriguing, called account incinerator. Who, pray tell, would need such an account? And what does it do?
DAVISAll right. So in my particular case, this is an interesting exercise for people out there to do we called cloud counting. And it's basically taking inventory, like John was talking about the biggest first step is taking inventory of your digital life. And cloud counting is literally counting out all the different online accounts that you, in particular, are attached to. And when I did this cloud-counting exercise about a year ago, I figured out that I had at least 100 online accounts and probably way more, if I really, really, really dug deep down into it. But I had at least 100 online accounts. And the vast majority of those, I don't want up after I'm gone. I would just refer to people, who remember me for its specific accounts and for the things that they can remember me by. So...
NNAMDIIf you don't want them to know about your gambling habits. (laugh)
DAVIS(laugh) That it's exactly the case. So instead of having to have a digital executor -- the way it works right now is if you want accounts deleted after you're gone, the digital executor has go into that individual account with the account information that you left them and figure out how to actually manually delete that account. In my case, I have so many online accounts that I just wouldn't want mine digital executor to have to go through all of those account and delete them. And so the Entrustet account incinerator service basically outsources that deletion efforts from your digital executor to Entrustet. And that's what the account incinerator does.
NNAMDIOn to Charlie in Washington, D.C. Charlie, you're on the air. Go ahead, please.
CHARLIEI just wanted to point out, beyond for your online information, if you have a hard gig -- hard disk sitting there with 60 gig of information, it might be really nice to leave somebody some help notes on what's where and how to deal with it.
NNAMDIWhat do you say to that, Naomi Cahn? I think most people would agree.
CAHNI think most people, including me, I certainly agree with that. Of course, you have to make sure that you trust the person that you leave all of this information with and...
NNAMDIYou mean, I can't give it to my bookie?
CAHN(laugh) I don't know how much you trust your bookie (laugh) actually. But if you -- the problem, of course, comes in with how much do you trust the person who will be carrying out all of your digital wishes when you're no longer there to oversee that person. And as someone who teaches trusts and estates and sees these cases all of the time, I generally trust people, but on the other hand there are lots and lots of untrustworthy people, including family members around. And those are all of the cases that we teach about. So having a service -- setting up with Entrustet or Legacy Locker or somewhere else can help make sure that someone who is completely trustworthy, because there's no personal issues involved, can carry out your wishes. Someone who is connected to you might not want to incinerate that e-mail account because it might be a way of staying connected to you.
NNAMDIAnd when you say someone you can trust, you could be talking about everyone from your spouse to your lawyer, correct?
CAHNAbsolutely. And people often do leave -- people can leave passwords in safe deposit boxes in which case trusted members of an inner circle would have access to that. People can leave passwords with lawyers. You can leave hard copies of passwords with people or you can try to keep them all online encrypted in some way.
NNAMDIJust don't give it to your bookie. For the record, I do not have a bookie. We're having a Tech Tuesday conversation on the digital afterlife, passing on your passwords. We're gonna be taking a short break, but we're still inviting your calls. Have you ever created a memorial page for someone who has died? Did that experience helped you to mourn their passing? 800-433-8850 or send us an e-mail to firstname.lastname@example.org, or go to our website kojoshow.org, join the conversation there. I'm Kojo Nnamdi.
NNAMDIIt's Tech Tuesday and we're discussing your digital afterlife, passing on your passwords. We're talking with Jesse Davis, he is co-founder of Entrustet. Naomi Cahn is a law professor at George Washington University, and John Romano is co-founder of The Digital Beyond and co-author of the book "Your Digital Afterlife: When Facebook, Flickr and Twitter Are Your Estate, What's Your Legacy?" We got an e-mail from Scott, who says, "One way to ensure that heirs have access to usernames, passwords and other account data is to use a password management application such as LastPass, a free application, or 1Password, a paid software package.
NNAMDIThere are added benefits to these services and that they provide more security via stronger passwords that are usually so inscrutable and long that they can't be remembered. 1Password assigned to the password manager software provides an executor access to the entire database of usernames and passwords." So I guess that would be a good suggestion. Jesse, one of the ways Entrustet is in business is by training lawyers in digital estate planning and then listing them on your website. What do attorneys need to know? And then I'll direct the same question to Naomi. First to you, Jesse.
DAVISSure. So, yeah, we saw an opportunity to basically reach out to lawyers across the country. And, well, first that was to see what they thought about digital assets and then to see if there was any way that they would be willing to incorporate digital assets into their current estate planning process. And we've gotten several responses. We've gotten, overall, hundreds of responses. But there have been at least a few dozen attorneys in the United States who basically are ready, willing and able to incorporate digital assets into their current estate plans. And the interesting thing is that because this is such a new area of law, there isn't one specific way to do it.
DAVISSome attorneys like using trust as a vehicle for protecting digital assets, some prefer using wills. It really depends on the individual lawyers. So basically, for the last six to eight months, we've been talking to estate planners around the country and working with them to figure out a way to incorporate digital assets into the laws of trust. If they say that they are willing -- ready, willing and able, then we offer them a listing on our lawyer directory. And the point of that listing is that actually when you're done filling out an Entrustet account, we recommend that you print out a list of your digital assets, bring it to your estate planner and have them actually officially incorporate your digital assets into a will.
DAVISThe problem with that is that not that many estate planners in the country currently know what to do with digital assets or are willing to deal with digital assets. So we use the lawyer directory as a resource for our users to find local estate planners who they can approach.
NNAMDINaomi, is a digital executor, whether it's a person or a company, something that's recognized in the law?
CAHNThe law recognizes executors, and so -- an executor is the person designated in your will or if you die without a will, if you die intestate, then the person representative of your estate is someone who is authorized under state law to manage all of your accounts in and to manage your estate. So digital executors, if they're put into a will, then a digital executor will have all of the authority of the executor that executors of wills would actually have. If they're not put into the will, if they're in another format, then their legality is somewhat questionable. Now, there is something called a holographic will, and that's a will that you can do all in your own handwriting.
CAHNAnd so, I suppose if you did a holographic will -- that is a will all in your own handwriting -- and you listed someone to have authority over all of your digital accounts in the states that recognize that, then that would be one way of doing it. D.C. and Maryland I don't think have -- allow holographic wills, but Virginia, in fact, does. So it's a whole -- I think all three of us would agree, it’s a whole new area. Now, estate planners -- I think the Entrustet service is wonderful. Estate planners are starting to realize that when they talk to a new client about their assets, about estate planning, they have to ask not just what are your assets, but also how do you access those assets.
CAHNAnd so asking not necessarily for the passwords, but at least helping with what John says is the first step, at least helping people become aware of their entire digital estate. So it's starting. It's starting to happen. I read "The Trust Advisor" blog fairly regularly. And these issues are starting to come up more and more as the estate planning community realizes that people have very, very valuable online assets. And whether the value is financial or sentimental, it's something that needs to be dealt with.
NNAMDIHere's an e-mail we got from Ivan. "I appreciate your taking on this matter. Like most, I have multiple accounts and have thought ahead. I've created a number of flash drives, one each given to a trusted friend, another a relative, both include with a 512-bit encrypted section in which a master file of all my accounts, log in IDs and passwords reside. Since every account I have has a different randomly generated alphanumeric character password, the encrypted master file is critical. I guess either my friend or relative will take care of loose ends after I'm gone, eh?"
NNAMDIHere's the Tech Tuesday question for you, John Romano. How do we know that our digital present is going to be our digital future? How can we ensure that the tech we're using now is the tech we'll be using a generation from now? That's assuming we want our digital presence to last longer than a generation. How does Ivan know that whoever possesses -- ultimately gets possession of those flash drives might not be saying, what the heck is this? What's a flash drive?
ROMANORight. Ivan, actually, is doing way more than the average user is doing right now. Most people haven't really given this subject any thought, and Ivan is 10 steps ahead. But the idea of long-term preservation is a huge issue that people are facing, the idea that your JPEGs today and all your photos, you know, 50 years from now, file formats are gonna change. If you just think back and think about your first word processing programs -- it's probably done in WordPerfect -- you can't even open those files anymore. So preservation has become a huge issue moving forward.
ROMANOThere's actually a nonprofit company that just started up called Chronicle of Life, and they're actually promising forever storage. And in addition to that, they're actually saying that if you upload assets in one of the formats that they support, they will actually continue to migrate those assets forward. So as JPEG goes out and something -- its replacement comes in, they would upgrade all those JPEGs into the new format, which is really trying to address this issue of long-term preservation.
NNAMDIHere is Donna in Cabin John, Md. Hi, Donna. You're on the air. Go ahead, please.
DONNAHi. How are you?
DONNAI had -- I guess you had asked about memorializing somebody on the Web.
DONNAAnd I've done it a couple of different ways. I did a walk for suicide prevention, and I did a Myspace page for these people who had passed on. And that was one of the things. But the other unique thing I had done -- a couple of years ago, I had a cat who passed away, and it really helped me. AOL, at that time, had a site for people that wanted to memorialize their animals, and that really seemed to help. There's a website called Over the Rainbow, I think, is the site, for people who want to memorialize their pets, and they can post it on there. But it does really seem to help a lot for people grieving online. And -- anyway, that was my input.
NNAMDIOkay. Thank you very much for your call. We got this e-mail from Jennifer. "My father died recently without a will. And when my mother needed to take his name off the IRA's, we thought we'd be able to go to the local Merrill Lynch office and get it all sorted out. However, we discovered that he had some kind of online-only account, and it was very difficult to get through to anyone to help us. We did not have my father's passwords, and my mother is not at all computer-savvy. These accounts are what my mother will live on for the rest of her life, and it has just been a huge headache and stressor for her to deal with this." Jesse, I like you to tell our listeners a little bit about how this might be dealt with by the front end because you're also working on a business-level model -- helping Internet sites build in options people can choose when they open that account. Talk about your agreement with the online service Broadjam where musicians store and share their work.
DAVISSure. So Broadjam is a great example of a website where the users are uploading sentimentally and economically valuable assets. So for those of you out there who aren't familiar with Broadjam, Broadjam is a place where musical artists and groups can go online and create a profile of their band, upload their music. And talent people and movie directors and so on come on, listen to their music and actually license the music out via the Broadjam website. So these are profiles where people really have their life's work uploaded, sentimentally valuable, and things that they actually make money off of on this. So economically valuable as well.
DAVISThe deal that we have with Broadjam is we basically provide Broadjam an automatic feed of whenever their users pass away, in exchange for Broadjam agreeing to say that they will do whatever the deceased person had wanted done with the account without arguing back at it. So, basically, Broadjam is sitting there, saying, we want these accounts to go to the next of kin or whatever the deceased person had wanted them to go to. We just wanna be notified automatically when someone passes away and have a third party like Entrustet to validate that the person has, in fact, passed away. And in exchange for that information, we won't put up a fight and we'll let the account go to whoever the person had wanted it to go to. So that's sort of the arrangement that we have with Broadjam.
NNAMDINaomi Cahn, does that sound like the kind of thing that you see businesses incorporating into their business agreements when you decide to open an account online?
CAHNIt's a really innovative way of starting to deal with this issue. I mean, there's so many different levels that you can deal with this issue of your online life after death. And we've been talking about what some of the solutions are and also what some of the business opportunities are. But we've got -- the individual can take control by setting up various -- by giving trusted people passwords. We've got lawyers and estate planners who can help with this. We then have service providers who can, maybe when you're setting up an account, ask you to set out what you want to have happen in the case of your incapacity or death to your account and alerting to you -- alerting you to what the default policies are -- that is, what will happen if you say nothing.
CAHNAnd there's then state laws. States, as we talked about in the context of Oklahoma, are starting to step in to say that someone will have access to all of your online accounts. But it's just starting. So I think what Entrustet is doing, both with helping attorneys get trained and then making arrangements with other companies, is a really good way to start more and more awareness of these issues.
NNAMDIAnd, Donna, thank you very much for your call. And finally, we got this e-mail from Chris in Arlington. "I just wanted to send a quick note to say your show inspired me to write a list of all my digital passwords to keep in a safe place just in case." But, John, for all of our listeners who are thinking, I really should do some of these things, but it sounds overwhelming, where is the simple place to start? Did Chris in Arlington start in the right place?
ROMANOAbsolutely. Creating awareness by generating an inventory or a list of your assets is gonna help make sure that people are aware of your accounts. Beyond that, you need to, inside that list, help provide access to those accounts and, preferably, write down what your wishes are so the person who receives all those passwords knows what to do with them and what you want. The idea of wishes is actually something that's really been important for people because if you just hand over your accounts and all your passwords, they might not know what to do with them. You might have a real expressed, you know, opinion on what you want to happen to your Facebook profile. So go ahead and write those wishes down as well.
NNAMDIAnd I'm afraid that's all the time we have. John Romano is co-founder of The Digital Beyond and co-author of the book "Your Digital Afterlife: When Facebook, Flickr and Twitter Are Your Estate, What's Your Legacy?" John Romano, thank you for joining us.
ROMANOThanks a lot. It's a pleasure.
NNAMDIJesse Davis is co-founder of Entrustet. He joined us by phone from Santiago, Chile. Jesse, thank you for joining us.
NNAMDIAnd joining us in our Washington studio, Naomi Cahn, law professor at George Washington University. Naomi, thank you so much for stopping by.
CAHNAnd thank you.
NNAMDIThank you all for listening. I'm Kojo Nnamdi.
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