Thinking digital- the importance of planning for your online estate

18 November 2020

There has been significant press coverage recently surrounding the developing area of digital assets and the associated challenges that changes in technology present for the law. It is likely that new legislation will be required over the coming years to ensure that digital assets are dealt with effectively.  

In our increasingly digitalised world, there is more and more to think about when carrying out estate planning. We are accumulating new types of assets, perhaps without even realising that they might have value. Whilst there is not yet a legal definition of "digital assets" in this country, the term could include any of the following:

  • Photographs stored on smartphones, social media sites or "cloud" storage services
  • Social media accounts and their content
  • Domain names
  • Bitcoin and other cryptocurrencies
  • Blogs
  • Video game avatars
  • E-books
  • PayPal accounts

Digital assets can present a number of potential issues relating to privacy, confidentiality and intellectual property rights to name just a few. Further, not everything we may think we own online is ours. For example, songs and albums purchased through iTunes or books bought through Kindle are in fact only licensed, not sold. Accordingly you cannot sell or transfer these products to anyone else and, when you die, usually your licence to use the content ceases.

However, those digital assets that can be preserved will require forward planning to ensure that they can be accessed by your personal representatives ("PRs") when you're no longer here. Some internet service providers are able to delete accounts once they are notified of death, or after a specified period of inactivity.

By keeping a list of digital accounts that have financial or sentimental value, your PRs will know these form part of your estate and can ensure their content is not lost. However, whilst it is helpful to keep a list of passwords to all online accounts, many service providers state in their terms and conditions that passwords cannot be disclosed to anyone else and therefore PRs may inadvertently break the terms of the licence agreement if they access an account without the permission of the provider.

If the time has come to address your own online estate then it is worth checking with the relevant internet service providers as to their specific procedures on death. You should then ensure your will is drafted to accurately cover the administration of your digital assets and avoid any pitfalls when the time comes.

If you have any concerns as to how your digital assets will be dealt with, please get in touch with your usual Wilsons' contact to discuss matters further.

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