Private Lives - Death in the digital age

03 October 2016

From social media to bank statements, almost everything today is conducted or at least available in digital form.

From social media to bank statements, almost everything today is conducted or at least available in digital form. There are clear advantages to living in a time of new and improving technologies, but as our digital legacy grows ever larger, dealing with death in the digital age is becoming more complex.

By making your wishes clear now, it will be easier for those dealing with your digital assets to ensure that they are passed on to the next generation.

What are digital assets?

Many digital assets are of predominately sentimental value, such as photographs saved on a laptop or in the ‘cloud’. The term includes film, music and book collections purchased and stored electronically. Digital assets can also have significant monetary value as our finances are increasingly managed online through bank and investment accounts. Other such assets may include online accounts generating reward or frequent flyer points or even investments in digital currencies such as Bitcoin.

Our digital legacy also consists of our social media accounts on sites such as Facebook, Twitter and YouTube. It may surprise many people to learn, however, that they do not in fact own their online content and actually only have a licence to use the website’s services. What happens to their profiles on death is governed by the website’s Terms of Use. Terms vary depending on the service provider, but often the licence to use the e-platform terminates and the deceased’s online data is non-transferable.

Problems for personal representatives

When a person dies, the individual dealing with their estate (the personal representative or PR) needs access to these electronic records in order to administer the deceased’s property, but few people plan for this.

Accounts or other assets that are digital-based often leave no paper trail which makes it difficult for a PR to locate the assets or even know they exist.

Even if a PR has knowledge of the assets, if they do not know the relevant passwords, they will be blocked from accessing them by layers of cyber security.

There is an additional problem. Accessing someone else’s account without their specific authority arguably breaches section 1 of the Computer Misuse Act 1990 and may contravene the service provider’s Terms of Use. As there is no relevant UK legislation, the only option available to PRs, or other fiduciaries such as attorneys, is to consult the Terms of Use of each provider separately in order to establish their rights to access and manage the assets.

Practical tips

  1. Make an inventory of all your digital assets and keep the list up to date. This will make it easier for your PRs to establish the extent and location of the assets they need to deal with. This inventory should be stored alongside your Will (although bear in mind that such information should not be included in your Will because it becomes a public document on your death). It is also advisable to make a record of your passwords, but for security reasons, this should be stored separately.
  2. Consider creating or updating your Will. Sentimental assets (such as digital photos stored on your computer) can be gifted under a personal chattels clause in your Will. Digital assets with a significant financial value or any associated intellectual property rights will need specialist treatment and one option could be to appoint a separate ‘digital executor’.
  3. For online assets, check the Terms of Use for your accounts to see if they specify what will happen to the account on your death. You can then leave appropriate guidance to your PRs. For example, you may want your Facebook profile to be changed to an ‘in memoriam’ page or deleted.
  4. Provide authorisation both to your PRs and your attorneys (under a lasting power of attorney) to access your digital assets. Specific language should be included in all of your estate planning documents that expressly permits them to access and manage your digital property.

If you would like any assistance, Birketts advises on estate planning and can help you create a comprehensive succession plan. If you would like to discuss any of the issues raised in this article, please do get in touch.

The content of this article is for general information only. For further information regarding death in the digital age, please contact Rebecca Rolfe. Law covered as at October 2016.