In a world where more and more of us are increasingly engaging in internet services and organising our lives in a digital format, most of us may not have considered what will happen when we die.
What is a digital asset?
Unsurprisingly, the term ‘digital asset’ has no precise legal definition. It has been the subject of legal argument but, for the lay person, it can usefully be described as including the following:
- Internet accounts including emails;
- Photographs or videos stored online;
- Social media accounts;
- Music libraries; and
- Virtual currencies, amongst other things.
These are all potential assets: some of which could be valuable and others may only attract a sentimental value.
At Howells, we have found that most clients have not even considered the possibility of gifting digital assets or what will happen to this information when they die.
So, what exactly can be done with our digital assets on death?
Who owns digital data?
It may come as a surprise to know that you probably don’t own what you think you do.
When we sign up to online services, e.g. Internet Service Providers (“ISP”) we usually have to agree to terms and conditions, which are non-negotiable. We enter a contact to use a service. In most cases we are granted a licence to use a service until the contract is terminated.
One exception to this is iTunes. You may have a burning ambition to pass on your digital version of your David Bowie back catalogue to your beneficiaries. However, your downloaded music is only licenced to the individual account holder and Apple retain ultimate control.
It may be the same position in relation to photographs that are uploaded to social media sites.
If any music or photographs are stored electronically on a device you do retain ownership of those but it may not be easy for your Personal Representatives to gain access.
Confidentiality and Privacy
You may think that the simple solution is to leave details of your passwords to enable your Personal Representatives to be able to access your accounts after you have died.
However, most ISP terms and conditions prevent you from disclosing this information and, in some cases, it could be illegal under the Computer Misue Act 1990.
It could also be confusing as to what duty of confidentiality the Personal Representative has towards the deceased. It may not be obvious what the law states and therefore a Personal Representative is best advised to obtain legal advice before proceeding.
So, what can Personal Representatives do?
Internet Service Providers e.g. Microsoft, Google, Facebook etc usually provide a range of options as to how the account can be dealt with after your death and are contained in their terms and conditions. These can include:
- All account content is removed. In the case of Facebook your Personal Representatives will need to provide a copy of the death certificate and the Will, if there is one.
- This will have the effect of keeping the account active after your death but no-one will be able to log into it, accept new friends or be searched for by others.
- Create a legacy contact. This allows you to nominate an individual who will be allowed access to the account after your death.
What can you do now to make it easier after your death?
- Leave clear instructions to your executors what should happen to these assets. They are still assets which form part of your estate.
- Log onto your social media accounts and change the settings to reflect how you would like your asset to be dealt with on your death. It is not possible to assume what will happen to your accounts on death and therefore it is prudent to carry out as much research now and plan ahead.
- Back up your digital assets e.g. by saving photographs to memory sticks or printing them out.
There is a growing trend for us to possess more and more digital assets. Lindsey Rawson, partner at Howells LLP advises that it cannot be underestimated how important it is to plan ahead now and update all digital information and your post death wishes to enable your Personal Representatives to be able to manage those assets, transfer or close them down. It can sometimes take longer to deal with digital assets than the traditional paper based assets in order to bring the accounts to a close in an efficient and thorough manner whilst retaining respect for the deceased and any beneficiaries.
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