Have you Protected your Digital Assets for your Loved Ones? By Kate Collins
Kate Collins, one of our fantastic Associate Solicitors, takes a look at what happens to your digital assets after your death, and how you can protect them with a Will drafted with the Digital Age in mind.
Have you thought about what happens to your online photos, email accounts or social media accounts, such as Facebook, LinkedIn, Instagram and Twitter, when you die? Digital assets also include cryptocurrencies (such as Bitcoin, Ether, Litecoin or Monero, for example) and cloud based storage.
For many of us, having a social media presence is becoming more and more the norm. But have you considered what will happen to your digital footprint on a personal or commercial level? Everyone should have a Will to ensure that their assets are dealt with in the way they want, and should carefully consider digital assets and legacy options available to them.
It is often easy to forget that digital assets are just as important as tangible assets, and although they may have more emotional or sentimental value rather than a financial one, it is still an area that should be considered carefully within your estate planning.
As such, businesses are also at risk, as digital assets such as websites, business email accounts or other cloud-based tools used for daily operation are often part of an individual’s digital assets. You should consider who holds the Intellectual Property rights for these business assets and how these should be transferred on your death. You may wish to discuss this further with our Corporate Commercial team, so that business assets and intellectual property rights can be fully protected as part of your personal estate planning.
Accessing digital assets following the death of loved ones has become a global challenge for estate planners and executors of estates. There are strict privacy laws concerning online assets and activity, governing access and sharing capabilities. In some situations, access to these digital assets may be lost entirely or a court order may need to be obtained, so that Executors, beneficiaries or business partners can obtain access permissions.
The increasing use of digital storage rather than on physical devices, for example, cloud storage, is an area that must be considered carefully. Rights of access to digital accounts and cloud storage generally depend on the specific terms of the relevant provider, but it is generally possible to grant access to others on death or incapacity, however there is a need for greater legal clarity when it comes to such assets.
Some small steps are being made when it comes to some digital assets. Apple announced last year that they would launch a feature that enabled their users to pass on information stored by them following their death. This feature launched in September 2021.
Some digital assets, such as music (for example iTunes) and eBooks are usually licence based agreements. This means that although you are entitled to use or listen to these assets, they are non-transferrable as you do not gain ownership at any time.
To ensure that you are able to retain and share your digital assets with your loved ones, it is advisable to include your wishes in your Will or Letter of Wishes.
To uphold privacy and protection, it is advisable to list details of your digital assets, such as account details and passwords on a separate Letter of Wishes. This Letter of Wishes would accompany your Will but is not legally binding. It would therefore not become part of your public Will document when Probate is granted on your Estate and therefore retain confidentiality of your personal account details.
You would need to appoint a Digital Executor to carry out your wishes in relation to your digital assets. This can be the same person that is named as Executor for the rest of your Estate, but it should be someone who is tech-savvy and able to access such accounts and transfer data as required. Alternatively, you could leave instructions for your Executor to appoint someone of their choice, who has the required knowledge to be your Digital Executor.
Professor Christopher Millard of the Cloud Legal Project at Queen Mary University of London has said that “the Law Commission of England and Wales is currently reviewing the property status of digital assets under English law. We look forward to their recommendations and we hope that they will address the urgent need to update succession law for the 21st century”.
If you would like more information on drafting a Will or Letter of Wishes that can meet your requirements for the digital generation, please contact Kate Collins on 01905 900 919 or on katec@bradleyhayneslaw.co.uk.