What happens to digital assets upon death
31 January 2023
A brief summary of what happens to your digital assets in the event of your death and how to best prepare for their succession.
When was the last time you took a photograph, listened to music or had an exchange of communications with a family member or friend? And how did you do so?
The odds are that it will have been fairly recently, if not today and that you will have done so using an electronic smart device.
To this end, have you ever considered exactly what you have stored on your electronic smart devices and what would happen to these assets in the event of your death? In an increasingly connected world – and even for those who consider themselves to not be permanently glued to their phone – an average person creates a significant digital footprint.
Whilst the concept of testamentary freedom largely dictates that an individual is able to make a Will in whatever terms they choose, it does not necessary follow that your digital footprint is capable of passing in its entirety under its terms.
Your electronic devices
You are of course free to leave your electronic devices such as your smartphone or laptop under your Will. However, you should note that the information contained on those electronic devices is completely different, as a beneficiary under the terms of your Will has no outright entitlement to this information.
As a general rule, you will need to specifically include the gift of the information on the device itself within your Will or your Letter of Wishes.
This is not a catch-all, however. For example, if you have Apple technology which you are intending on gifting under the terms of your Will, Apple’s standard position is that your Apple ID is non-transferable. Apple has introduced the option for you to designate a Legacy Contact who will be able to access some, but not all of your information – including your photographs, notes, voice memos and contacts – but other aspects of your Apple ID will not transfer across to your designated Legacy Contact (such as usernames and passwords). Your Legacy Contact will also have time-limited access to your data, before your data is deleted. If you have not pre-designated a Legacy Contact, Apple will likely otherwise require a court order to pass over your digital information.
Your downloaded digital assets
Even though you may have amassed a large online music or audiobook collection, you do not ‘own’ the music or books. Instead, you have purchased a licence giving the right to listen or to read. This right is not typically transferrable, and will likely cease upon your death.
Again, check the Terms & Conditions of the digital asset in question. That way, there will not be any unpleasant shocks later on down the line.
Your social media accounts
A catchy handle? Lots of followers? Use your account like an online photo album?
You will need to check the Terms & Conditions for the sites in question. Whilst it may seem like a mundane task, some sites may specify that your account will be deleted on your death – or after a period of inactivity. It is also likely that many sites will not allow for accounts to be transferred to a third party, even if they have received proof of your passing.
Other sites, like Facebook, will allow for your account to be memorialised. That way, your family and friends will be able to access your content – in the same way that they would have done so whilst you were alive – and share memories by posting on your “Wall”.
In conclusion if your digital footprint is something that you are concerned about following your death, we would advise you to make the necessary arrangements before your death to make certain that your executors have access to any information or media that they may need to access. However, bear in mind, that even then, any relevant Terms & Conditions may prevent these passing as you intend so it is best that you consider this when planning, and drafting, your Will.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2023.