final paper succession.docx

8/14/2019 final paper succession.docx

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Introduction

We all know that normally only tangible assets are to be given as donation inter

vivos or mortis causa. The researchers wanted to give emphasis about the

transfer of Digital Properties and consider them as personal property to which

the testator wishes to.

This fascinating article explains the importance of leaving your critical

information in a safe place to be picked up by your loved ones after you have

passed away. However, there is a new twist. We are all aware of how important

it is to communicate bank account numbers, life insurance policy numbers and

other key messages, but what about all of your passwords for email accounts,

PayPal accounts and other online information? Using the MyMessages service

at USLegalWills.com is an ideal way to document this kind of information which

should not be included in your Will, as it is a legal document that would have to

be updated, signed and witnessed every time a change is made. When loved

ones do not have access to this information, a number of issues can arise...

In the Philippines the issue about Digital Inheritance has not ripen into

something that we adopt nor has a legal perspective to be adopted. But

inasmuch as any other property, Digital Inheritance just like any other issue

should be given emphasis for they might constitute greater problem and the

need to have a definite law regarding its inheritance is obvious.

Holden Cesar Arellano

Sharon Padaoan-Ruedas


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What is Digital Inheritance?

The subject of your death is perhaps the most sensitive issue of all. We turn a

blind eye to the fact that our death will arrive, perhaps later today, perhaps in

50 years. A wise man once told me The only thing that is certain in this life, is

death.

One of the difficult and sensitive issues we avoid and delay is the making of

our wills. It is something we would rather not think about, but when a will is

written, so many problems, worries and difficulties are avoided, and it can be

considered a gift, not only in terms of the legacy passed, but also a means by

which the pain of the bereaved can be lessened. It is a consideration that can be

of great help.

It can be a collation of assets and their location, and this makes the process of

transfer so much easier.

Consider your assets. Look around your home... House maybe? Car? Furniture?

Savings? Antiques? These are quite easily quantified, as you can look around

and see them. They are obvious.

What might have slipped your attention are your digital assets. Those assets

that reside in the virtual world, invisible, ignored and dismissed.

These assets are virtual, and invisible aspects of your internet life. The life thatyou spend online, on the computer at home, and on your smart phone whilst on

the move have a growing importance and relevance. Most of us have several

accounts online, some have many more, but all of these have a value and

importance to us.

Value and importance. And if something has a value and importance to you, it

will also hold value and importance to another - to consider this is not the case

would be like keeping a diary throughout your life, careful and precise, with a

lifetime's collection of thoughts, observations, memories and events, and not

considering who you might wish to read it after your death.

Your diary might have no financial value, but what a gift to pass to another. Or,

on the other hand, maybe something you'd choose to be destroyed... Either way

it is very likely this is something you would rather have some form of control

over.


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Your diary has a worth, has a value - to you, and to others.

In the world of increasing virtual engagement, all your computer keystrokes

gradually form a view of your opinions, memories, history and hopes and these,

allied with any monetary values accumulated in your online accounts such as

PayPal, eBay, iTunes gather into an enormous collection of assets, a virtual

treasure trove, that would be an astonishing gift to pass to another.

This is your digital life, as significant as any aspect of your life, an important

and valuable component that though invisible has tangible and realisable

worth, to you, and to others after you die. Your time, energy, money and online

assets are a gift to pass on. it is Your Digital Inheritance.

What is a Digital Asset?

You can spend your life gathering a collection of rare antiques and paintings.

You can accumulate money, property and wealth. All tangible assets that can be

handled and passed from one person to another, and each of these, however

small, carries a value, to both you, and to those to whom you may choose to

pass your assets on to.

Your assets are the legacy that you can pass over, gift to, bequeath,or leave to

your friends or family when you die. And yes, don't look away from the screenwhen the word die appears in front of your eyes, for to ignore the inevitability

of your death is as short sighted as ignoring the amber traffic light, that is

about to turn red. Slow down.

And now, today, in the digital age we have our digital assets, our virtual assets,

those things of value that are accumulated in the online environment. All those

apparently valueless collections, small accumulations of monies, information,

imagery, data - many gathered and ignored, considered by no-one.

But hold on a moment. Do you have an online account with eBay or PayPal?

What other online resources have you gathered over the years? I'm going to

guess you have over 10 digital assets that represent some value to you, whether

of monetary, emotional or historical value to you - and thence, by extrapolation,

hold a value that is independent from you.


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And, this value, this worth, is worth giving to somebody when you die. It is part

of your digital legacy, your virtual legacy.

And if you are wincing, feeling discomfort at this thought, bear this in mind...

Would you rather the internet conglomerates - eBay, Paypal, Facebook, Twitter

held onto what belongs to you? For if you ignore these assets, rest assured that

these companies will happily hold onto you money, your assets, and never

bother to ask you if you want them back. It is the equivalent of a black hole in

cyberspace that no-one wants to think about, let alone talk about, and even less

want to do anything about.

These are your valuable assets, why leave them in the hands of an uncaring

monopoly who are happy to blithely keep quiet about the massive storehouse

of your values. And as time progresses the interest and increase in value will

probably give them less cause to bring the value of your assets to yourattention.

It is in their interest to just keep quiet.

So, stop and think. Take a moment to take stock of your online accounts,

enumerate and list them, and perhaps that will draw your attention to the value

of your online life. Think about your social network accounts, your email

accounts, and all those online accounts, all password protected that hold some

form of value to you, as now is the time to start to plan for the future, and asyou know, these assets are just going to grow and grow as time goes by, and

why leave any asset to the greedy hands of a third party.

What are the issues concerning Digital Inheritance?

Today, more and more of life - including bank accounts, writings, photographs,

and social interactions - has taken on a non-tangible form in the digital world.

These rely on media that are not owned by the data owner but by service

providers such as Google, Apple,Microsoft and Facebook.Also in contrast tophysical assets, electronic assets can be copied indefinitely, which is

problematic if the asset represents intellectual property. There is also the

challenge of privacy violation, in givingexecutors access to a deceased person's

online information. Digital inheritance can also pose a challenge for many data

heirs to manage the digital legacy of the deceased when they have limited IT

skills themselves. A further challenge comes with the extreme proliferation of
http://en.wikipedia.org/wiki/Service_providerhttp://en.wikipedia.org/wiki/Service_providerhttp://en.wikipedia.org/wiki/Googlehttp://en.wikipedia.org/wiki/Apple_Inc.http://en.wikipedia.org/wiki/Microsofthttp://en.wikipedia.org/wiki/Facebookhttp://en.wikipedia.org/wiki/Intellectual_propertyhttp://en.wikipedia.org/wiki/Executorhttp://en.wikipedia.org/wiki/Beneficiaryhttp://en.wikipedia.org/wiki/Beneficiaryhttp://en.wikipedia.org/wiki/Executorhttp://en.wikipedia.org/wiki/Intellectual_propertyhttp://en.wikipedia.org/wiki/Facebookhttp://en.wikipedia.org/wiki/Microsofthttp://en.wikipedia.org/wiki/Apple_Inc.http://en.wikipedia.org/wiki/Googlehttp://en.wikipedia.org/wiki/Service_providerhttp://en.wikipedia.org/wiki/Service_provider


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digital data. The average person has 25 online accounts,[1] this not taking into

account the data physically stored on their computers and phones.

Data heirs that are faced with an un-sorteddata flood with limited instructions

are often unsure about how to manage each separate account. Yet another

problem is posed by the fact that contracts with service providers most oftenare automatically terminated (by the terms of service) as soon as the customer

ceases to exist, or are at least vastly reduced. In this case, data heirs lose access

to the data, and in several cases, they are deleted. People's need to be able to

pass on their digital assets has given rise to several companies that specialize

in providing consumers with ways to allow their heirs to inherit their digital

assets after they die.[2]

How to Handle Digital Inheritance?

In contrast to conventional inheritance of physical assets, digital inheritance

also needs to cope with the fact that the digital heirs may only be known by

their email addresses ormobile numbers. Handing over digital assets requires

additional instructions that may be crucial for an heir to further treat the

digital assets.

Application

Digital Inheritance should be set up wherever important data needs to be

handed over in case of an event that renders the owner incapable of caring for

those assets. The data owner hence has an interest to list (or centrally store) his

or her assets and decide who will need which data. The data owner will also

need to specify the circumstances under which the data shall be handed over to

heirs (generally this is simply the death of the owner) but it can be difficult to

prove the death in an international setup where heirs, data sources and last

residence of the owner are internationally spread. The data owner will also

need to have a way for secure and guaranteed notifications of data heirs even if

they are only reachable via electronic channels.

Other applications can be to simply document the digital essence of a person,

meaning to fulfil one of the oldest and deepest human wishes to leave traces

and become remembered.
http://en.wikipedia.org/wiki/Digital_estate#cite_note-1http://en.wikipedia.org/wiki/Digital_estate#cite_note-1http://en.wikipedia.org/wiki/Digital_estate#cite_note-1http://en.wikipedia.org/wiki/Data_floodhttp://en.wikipedia.org/wiki/Digital_estate#cite_note-2http://en.wikipedia.org/wiki/Digital_estate#cite_note-2http://en.wikipedia.org/wiki/Digital_estate#cite_note-2http://en.wikipedia.org/wiki/Email_addresshttp://en.wikipedia.org/wiki/Mobile_phonehttp://en.wikipedia.org/wiki/Mobile_phonehttp://en.wikipedia.org/wiki/Email_addresshttp://en.wikipedia.org/wiki/Digital_estate#cite_note-2http://en.wikipedia.org/wiki/Data_floodhttp://en.wikipedia.org/wiki/Digital_estate#cite_note-1


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Legal perspective

From a legal point of view, digital inheritance requires that digital data takes

part of the descendant's estate.As mentioned earlier, the concept of universal

succession means, that heirs enter into the legal position regarding property

rights of the testator by law. Such property rights as elements of thedescendants estate are under several national laws, e.g. in Switzerland[3] so

called subjective rights (like outstanding debits, property, intellectual property

rights and others) as well as possession-based rights of the testator.

Digital data can constitute subjective rights (e.g. copyright regarding a

manuscript of the testator). However, the majority of digital data won't be a

subjective property right (e.g. passwords, personal images or notes). In order

that such data falls into the descendants estate, the testator must have

possessed these data. Possession again is usually related to objects, which leads

to the question, if digital data are objects in the legal sense. Today, it is

commonly assumed that digital data does not comply with basic characteristics

of objects such as physicalness.

As far as digital data is saved on a data medium of the testator, such digital

data is adducted by the possession of the medium as an objective. Of course

this is not the case if the testator has transferred his digital data to a service

provider to archive it on the service's server. In such a case, it is crucial, that

the testator has had access to the digital data e.g. online with a password. In

such a case the password analog a key for the good old save box is an aid

for access, which creates possession in a legal sense. Then the access to the

digital data (and aligned with this the notice of the data) falls into the

decedent's estate. It is currently assumed that there is no reason why, e.g.,

photographs in a photo album should be treated differently than photos

archivated as digital data. As a result it can be declare], that digital data,

archivated on a medium of the service provider, falls into the decedent's estate,

as far as the testator has had access and the digital data is not cleared with the

testator's death.

If the testator doesnt want the ordinary inheritance of his digital data to all ofhis heirs, but instead wants to pass it exclusively to one or more specific

persons, they are required to make certain dispositions in their lifetime. Of

course, if they are the only one who knows about the digital data, he can pass

the access keys to his assignee and all the other heirs won't know about it.

Different national law representatives do not agree whether the testator can by

means of testamentary disposition assure, that only the assignee does notice of
http://en.wikipedia.org/wiki/Estate_%28law%29http://en.wikipedia.org/wiki/Switzerlandhttp://en.wikipedia.org/wiki/Switzerlandhttp://en.wikipedia.org/wiki/Switzerlandhttp://en.wikipedia.org/wiki/Copyrighthttp://en.wikipedia.org/wiki/Manuscripthttp://en.wikipedia.org/wiki/Server_%28computing%29http://en.wikipedia.org/wiki/Decedenthttp://en.wikipedia.org/wiki/Decedenthttp://en.wikipedia.org/wiki/Server_%28computing%29http://en.wikipedia.org/wiki/Manuscripthttp://en.wikipedia.org/wiki/Copyrighthttp://en.wikipedia.org/wiki/Switzerlandhttp://en.wikipedia.org/wiki/Switzerlandhttp://en.wikipedia.org/wiki/Estate_%28law%29


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his digital data. The problem here is, that with the opening of the will at the

latest, the other heirs should get knowledge of the existence of digital data and

will be authorized (under many national laws, e.g. in Switzerland) to get to

know the digital data based on their information right as heirs. Not even a

declared will of confidentiality of the testator is preferential to the information

right of the heirs. This is understandable in a way, as it protects the minimum

legal portion of each heir if the digital data has monetary value.All the same

the testator can partially assure that his will is going to be respected by

downgrading those who do not respect his declared confidentiality will to the

minimum legal portion.

Limitations and alternatives

In absence of solutions that can provide the above application the probablysimplest approach to digital inheritance is to create regularly a backup of the

most important assets and deposit it offsite (e.g. a bank vault) and

consequently determine a single person (lawyer, partner, children) that will

post-mortem distribute the data. This should also include a list of passwords to

online (and local) accounts. Obvious challenges are here in the area of security,

data readability (are there still readers for the media, are there still programs

for the files) and manageability (being updated of the backup as well as

assignments to heirs).

This is how the system works:

1. Log on towww.google.com/settings/u/0/account/inactive.2. Provide a mobile phone number or an alternate email address.3. Set an inactive, timeout period for your account. This allows Google to

take action in case you leave your account inactive for a certain time

period. This may be three, six, nine or 12 months.

4. Choose up to 10 trusted contacts that would be notified when youraccount becomes inactive. You can choose to share your data withthem.

5. You can also choose the option of the total deletion of your accountwithout sharing it with anyone.

6. One month before the timeout period expires, Google sends you analert either by email or text message.
http://en.wikipedia.org/wiki/Monetary_valuehttp://en.wikipedia.org/wiki/Backuphttp://www.todayszaman.com/www.google.com/settings/u/0/account/inactive.http://www.todayszaman.com/www.google.com/settings/u/0/account/inactive.http://en.wikipedia.org/wiki/Backuphttp://en.wikipedia.org/wiki/Monetary_value


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7. If the account still stays inactive during that period, Google notifiesthe "trusted contacts" and shares your data with them.

The tool can be used for all your data associated with Google, such as Gmail

accounts, Blogger posts, YouTube videos, Picasa albums, Google Drivedocuments, Google+ profile, etc.

Death is certainly not a thing that many of us like to talk about, but this service

is an important step toward protecting our digital rights when that inevitable

time arrives.

The Case of Benjamin Stassen

Benjamin Stassen committed suicide in late 2010 without leaving a note. Aspersonal representatives of his estate, his parents sought access to his onlinerecords for an explanation as to why he committed suicide. They contactedGoogle and Facebook asking the companies to release their son's passwords sothat they could access his G-Mailand Facebookaccounts. Both companiesrefused on the grounds of privacy.

Most online service providers bind users by their terms of business. Personalrepresentatives can close a Facebookaccount or turn it into a ''memorial page''but cannot access it. Google will supply executors with copies of e-mails fromaG-Mailaccount but again will not allow access to a deceased user's account.

Benjamin Stassen's parents obtained a Court Order forcing Google andFacebook to give them access to their son's records. Google complied with theCourt Order. However, whilst the Order released Facebook from their duty ofclient confidentiality, the company is standing by its policy of not allowingpersonal representatives access to accounts, and to date has not allowed theStassens access to their son's account.

The researchers wanted to give emphasis that Digital Inheritance should be

exercise in the Philippines using the laws and provisions in Successions. In thisarticle, what the user-providers have is a contract to the owner of the account

on which after they die, an agreement is already furnished to execute. A

contract is different from last will and testament.

In testamentary succession, whether holographic or notarial, the intentions are

fully supplied by the testator and only his will should suffice. Unlike in


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contract it was a ready copy that the system-provider will give to the testator,

whom he can no longer change.

We can also treat this Digital Inheritance as personal property and its

importance just any other asset is very much obvious that we need to take into

considerations of preserving and transferring them, much destroy them inorder not to be seen by any person if the testator wishes them to be hidden

forever.

Unlike, cash or any other property, there should only a specific person to

receive or to be an heir of a certain Digital Inheritance. Other provisions of the

testamentary succession will not apply specifically the hierarchy of those who

will inherit. The fact that the owner may not want his parents to know his

secrets, for example he is a lesbian or a gay, he may want these digital things to

be destroyed instead, to be pass to someone he trusted so much. There is

really a need that the proposed additional law for Digital Inheritance should be

given attention. The researchers also believed that this will help much to our

society.

final paper succession.docx

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