On-line On-death – what happens to your digital assets when you die?

With reportedly 94% of people have some form of digital presence and 52% of people saying that none of their personal representatives would be able to access their digital assets on their death, it is becoming increasingly more important for individuals to consider making direct provision for digital assets in their Will or as part of their estate planning.

When considering digital assets, people must remember that they should be treated separately from the device on which they are stored. For example, you could leave your smartphone to your son but the family photos stored on your mobile phone to all of your children equally.

It is extremely important for individuals to consider provision for their digital assets specifically in their Will as for Wills executed on or after 1 October 2014, the definition of personal belongings includes all tangible movable property owned by an individual (except business assets, investments and money). Digital assets are not tangible and therefore do not fall within the standard definition and are subsequently not covered by standard Wills. There is also no specific legal definition of a ‘digital asset’ which can make it more difficult for someone to decide what assets to make provision for in their Will.

Typical examples of a digital asset could include the following:

• High quality photographs and videos (that potentially could be sold/licensed)
• Cryptocurrency such as Bitcoin
• Online gaming/betting accounts with virtual currency
• Websites / blogs you have created
• Online books
• Digitally created artwork
• Accounts on social media with a large number of followers
• Digital Share platforms – of which no longer issue share certificates

Some digital assets will have a monetary value and some will not be worth anything in monetary terms, but may have sentimental value (for instance family photos). It is no longer common to have photos developed with an estimated 3.8 billion people worldwide possessing a smartphone and now store their photos digitally using digital platforms such as ‘iCloud’ or ‘Snapchat’. What will happen to the photos stored on your smartphone on your death?

It is commonly assumed that your loved ones would have an automatic right to access and organize your electronic assets after your death, however this is not always the case. It is considered an offence under the UK’s Computer Misuse Act 1990 to use someone else’s password to access their private accounts and will sometimes result in the account being closed due to a breach of the terms and conditions, which results in the loss of all of the data, therefore people need to ensure that their Wills include provision as to how their loved ones will access their digital assets.

There are a number of steps you can take when protecting your digital assets, including:

• ·Leaving guidance to our executors and trustees as to what you would want to happen to these assets on your death. This could be done through a Will, or by Letter of Wishes (a side letter accompanying a Will) explaining how your digital assets should be dealt with;
• Reviewing the terms and conditions when creating an online account or profile, to ascertain what will happen to the account on your death;
• Be aware of any procedure as to nominating somebody to access accounts after your death, and keep this updated e.g. memorialising social network accounts;
• Creating back up hard copies so that your executors may be able to have access to a copy of the digital asset, if not the real thing;

If you choose not to protect your digital assets in your Will or estate planning, you will more than likely be faced with a scenario in which your loved ones are not able to access any online information without a court order. This is extremely costly and time-consuming and could be particularly complex for people who have a business which may be primarily run online e.g. photography or website design, or for more sentimental reasons with people’s personal accounts.

Contact our experienced private client team today via telephone, email or live chat to discuss how you can protect your digital assets.