Do you post photos, blogs or videos on Social Media?
How often over the last few weeks in lockdown have you scrolled through your social media, posting moments of your life to stay connected with the outside world?
Now, even more so than ever before, is a time when more and more aspects of our everyday life are moving online, through the likes of Twitter, Facebook and Instagram, meaning the number of assets existing solely in digital format continues to rise.
The term “Digital Assets” refers to comments made and photos shared on Facebook, ‘tweets’ on Twitter, blogs or articles published on websites, videos placed on YouTube, music libraries, Bitcoin and other cryptocurrencies, or even a CV on LinkedIn.
Digital assets commonly have significant sentimental value attached to them, but an increasing number of them will also now have an inherent financial value which the owner is likely to want to pass onto loved ones following their death. However, in the case of digital assets, we may not necessarily own all that we think we own.
What happens to them when someone dies or loses mental capacity?
Take Bitcoin for example. Bitcoin, a type of cryptocurrency, requires a private key to access the Bitcoin owners wallet’s contents, and so if a Bitcoin owner dies without passing on the private key, the cryptocurrency will be lost forever, leaving frustrated and bereft family members unable to access their inheritance stuck in the blockchain.
Users of other online services, such as Facebook and Instagram, are regularly required to agree to the Internet Service Provider’s (ISP’s) terms and conditions, which will typically impose restrictions upon their use of digital assets, including what can be done with the assets upon their death. More often than not, rather than owning the content of their online account, the user will instead possess a ‘lifetime licence’ to use the services provided by an ISP. This licence will often terminate upon death and will be non-transferable, with the ISP commonly citing issues of privacy and confidentiality as the main reasons preventing third party access or transfer following the death of the user.
This can bring about issues in transferring ownership of digital assets upon death, however, there are certain measures that you can do to protect and plan for your assets should you die or lose mental capacity.
Nominate someone to have access to your digital assets on your different accounts upon death
Some ISPs allow users to nominate someone else to have access to their digital assets following your death, eg;
Facebook: If you are an account holder you can appoint someone to be a ‘legacy contact’ which allows them to take control over some aspects of the account. This includes choosing to either have the account deleted or memorialised, but prevents the contact from reading the deceased person’s messages. The contact will not be able to post as the user but will be able to post tribute posts about them.
Google (including YouTube): Google has a function called “Inactive Account Manager”. An account holder nominates a friend or relative to be contacted when they die. Google will contact this friend when the account has been inactive for three months.
Create an inventory of all your digital assets and update this regularly
Identify all your online accounts and leave a detailed inventory. This allows executors and attorneys to quickly establish the extent of the client’s assets they are managing. This can be stored alongside your Will, to serve as formal guidance to your Personal Representatives and to assist them in ascertaining the extent of your digital assets following your death. It is unwise to include such personal information in the Will itself due to the fact that a person’s Will becomes a public document upon their death.
Most ISPs incorporate provisions into their standard terms and conditions prohibiting the user from recording details of their login information and passing this onto third parties (including their Personal Representatives), so including sensitive information such as usernames and passwords, and the public and private keys for cryptocurrency accounts, in your inventory is not recommended. A practical solution would be to involve a third-party provider of password and online ID security, such as an online password management site.
Include a clause in your Will that is specific to digital assets
It is possible to include a clause within your Will itself which specifically relates to the succession of any digital assets of purely sentimental value. However, for digital assets with an inherent financial value, specialist advice and/or treatment may be required, as the legal issues involved may relate more closely to intellectual property law than to the law of succession.
Back up your digital assets on a regular basis
Where possible, back up any digital assets stored solely in the ‘cloud’ onto an external hard drive. This will help guard against the risk of the Service Provider deleting everything and help preserve and protect digital assets after death. (Make sure details of where this information is stored is known to your Personal Representatives in separate instructions).