If you are considering an update to your will, or have just started out on some lifetime planning then it might be work thinking about how your digital assets will be managed after you die. You are likely to be more digital asset rich than you think, with more personal information being uploaded to Internet Service Providers (ISPs) than ever before. Photos you have taken, films available on the cloud, even the emails you have sent can make up the large number of digital assets being stored solely online. By not including these digital assets in your plans, you could risk losing a sentimental record or even a valuable one and so provision should be made of what will happen to these assets when you are no longer around.
This will be of particular significance to individuals who have digital assets that generate an income through advertising revenue, digital assets which only exist online (as some cryptocurrencies do) and digital creations that only exist when accessed via an online platform.
It is also important to point out that wills signed before 1 October 2014 often adopt the statutory definition relating to personal possessions and (unsurprisingly because this comes from the Administration of Estates Act 1925) this definition does not include digital assets. It is also worth mentioning that, although for wills signed on or after 1 October 2014 personal possessions will include all tangible property, even this definition may not include intangible digital assets.
Outlined below you will find some key issues for individuals looking to preserve (or destroy) their digital assets after they die and how to address them.
What is a digital asset?
Before looking at how to organise and protect your digital assets, we must first understand what falls within the definition of a digital asset. Unfortunately, there is no legal definition for a digital asset. However, a digital asset can suitably be termed as a digital file that exists on the internet or cloud server and which represents text, images, sounds or media that has been formatted into a binary source. This is distinct from those that are saved on a local device owned by the creator (commonly referred to as a digital record) because digital assets are stored on the internet and as a result are treated differently following death. Digital records which are saved onto a local drive will pass with the device they are held on because they form the digital fabric of that device.
Your digital assets may include: photographs stored only on a cloud, blogs, e-books, social media posts, online personalities such as gaming avatars, virtual worlds (such as those created in Minecraft), emails and Bitcoin or other cryptocurrencies. It would even include the currency used within an online platform such as World of Warcraft.
So what do you do about that family photo that was shared to your iCloud account or posted on Instagram? You didn’t take the photo so don’t own the copyright and because you didn’t want to take up space on your hard drive you didn’t download it, it only exists on your cloud account. Another scenario could be that you have developed a blog which is generating income through advertising revenue. Lastly you may have an online currency which potential beneficiaries are unaware of.
Your first step is to develop a digital strategy.
It is important to have a plan for what will happen to your digital assets following death, otherwise personal representatives will be limited by the various standard terms and conditions that ISP accounts have or will possibly be unable to access the digital assets at all.
Without instructions, ISPs will follow a standard procedure. Common options include, terminating the account and deleting all the information stored on it following a period of inactivity or electing a nominee who will be allowed to access the account following death, with permission to access content following the production of a grant of probate, death certificate, other evidence of death and verification of identity and relationship with the deceased.
Another option is the memorialisation of content for a brief period of time following death so that people can leave messages. Following this period of time, the account is then deleted. Part of your digital strategy should be to have instructions in place so that the accounts are treated in an appropriate way after you pass.
It may appear tempting to leave a list of your accounts and passwords (assuming they are all different) for your personal representatives. However, you should be cautious of this (and of those who suggest it). The Law Society recommends leaving a list of the accounts only, in the form of a personal asset log. This is because a personal representative accessing a deceased’s account with login and password details could be committing a criminal offence through unauthorised access. It may be possible to argue that by passing on details of logins and passwords, the deceased is granting consent, but it is not worth the risk.
Do not overlook more conventional routes to protect your digital assets though. Content created by an individual, be it an email or blog for instance, is capable of benefitting from copyright protection. On death, the copyright in any such asset would pass to the deceased’s personal representatives who will hold it for the beneficiaries.
For online bank accounts, such as PayPal, the closure and distribution of an account balance is similar to a physical bank and the process is helpfully outlined on the website. However, with a cryptocurrency such as Bitcoin, a transfer would require the private key and if this is not passed on then the account value would be lost. As there is no physical bank presence, a personal representative would have to check to see if the owner of the Bitcoin had a paper wallet or if the private key was recorded anywhere.
With an asset log and clear instructions for your personal representatives, having taken into account the various services that you use, you can have peace of mind that your digital affairs are in order.
Then what do personal representatives do?
Implementing the wishes of the deceased using a will and any letters of wishes, with reference to the digital asset log will hopefully prove uncontroversial. However, even with the planning suggested above, those tasked with administering an estate should still be aware of points which could become contentious.
Personal representatives should exercise caution when implementing the wishes of the deceased if they have indicated that information stored online or electronically is to be destroyed. If this information had or could have a monetary value (such as unpublished works) then there is potential for these instructions to conflict with the personal representatives’ duty to collect and preserve the deceased’s assets for the benefit of the beneficiaries. Terry Pratchett’s instructions to destroy a hard drive of unpublished work by having it crushed by a steam roller is a good example of this, but there are also implications for individuals with blogs, domain names, digitally created artwork, e-literature and video’s posted on platforms that have been monetised. Personal representatives with such instructions should seek professional advice before taking any irrevocable action.
For individuals with a significant online presence, especially one with a notable monetary value, a clear plan and accompanying instructions is now an essential part of lifetime planning.
With more and more valuable information being stored online greater care will be needed to make sure arrangements are made for it to be passed on.
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