Planning for your digital estate

Posted: 22/08/2017

Have you considered the amount of digital data that you have and if so, what would happen to that data on your death?

This issue made headlines again recently when a German appeals court ruled that the parents of a teenage girl were unable to access her Facebook account following her death. The court held that the girl’s right to privacy outweighed the parents’ rights to inherit her Facebook contract under German law and view account information after her death. It also ruled that the parents’ obligations to protect their daughter’s right to privacy as a minor also ended on her death, further restricting their ability to access the Facebook account and any information it contained.

In the UK there is no standard procedure for what happens to digital assets in the event of death or mental incapacity and so it is vital that any financial planning that you undertake includes planning for your digital estate. This will involve considering what assets you own, what rights you have and whether and how those assets and rights can be passed on.

Some assets cannot be legally passed on after death because the user only buys the rights to use the asset during their lifetime. Other accounts will contain money or assets that can be passed on if the correct procedures are followed. When creating online accounts, it is important to review the terms and conditions for those accounts, particularly specific terms detailing what should happen if a user dies or is inactive for a long period of time. Failing to do so could lead to data being destroyed before an executor can gain access to it.

Some accounts may automatically close, some may be frozen and others may be memorialised. More internet service providers are allowing users to appoint a person such as an executor who can be granted access or permitting a user’s account to be memorialised. Facebook now allows users to appoint a “legacy contact”. Google has an Inactive Manager facility.

If assets held online have more than a merely sentimental value, you should consider including them in a separate legacy with separate executors to deal with them. This is particularly useful if you own anything online that contains intellectual property rights (such as a digital photography business) because the digital executor can maximise their value for your beneficiaries.

As a result of the Inheritance and Trustees Powers Act 2014, where wills are executed on or after 1 October 2014, personal “chattels” broadly include all tangible personal assets owned by an individual but will not include digital assets which by their nature are intangible. Thus there is a paradox that hard copy photographs owned by you will be inherited by the beneficiary to whom you have gifted your chattels but if you store the same photos online, the right to access them digitally may not be left to the same person. Specific consideration should therefore be given to your digital assets and to including additional powers in your will to control them. If you have more specific, private wishes about how your digital estate should be administered, those could be included in a separate letter of wishes kept with your will so that they remain private between you and your digital executor/the beneficiary to whom you have left your digital estate.

Simple practical steps

make it as easy as possible for your next of kin to locate any PC, Mac, laptop, tablet, mobile phone, Kindle and MP3;
keep good records:

keep bank statements well organised as these will show if there are any payments relating to digital assets, both regular and one-off payments;
tell select friends or relatives about the existence of your digital assets;
make a note of passwords and login details for your devices so executors can gain access to information and assets stored on them. Executors may need to access information for the purposes of tax returns or when administering the estate. None of this information should be contained within the will because the will eventually becomes a public document. The list should be stored securely as a hard copy and kept up to date. Tell your executors that the list exists but do not give it to them. You may be breaching the terms and conditions of individual Internet service providers if you do this;
print off hard copies, burn to CD or download onto a USB stick any photographs and documents that are only stored digitally and keep them in a safe place where executors can find them. Retain copies of key documents and data on a personally owned device (such as a laptop, tablet or personal computer), rather than storing them solely online. This will enable executors to access those assets more easily.

Louise is a committee member of STEP’s Digital Assets Interest Group. The group was established in recognition of the need for practitioners to effectively assist clients and their fiduciaries in planning for and administering digital assets after the individual dies or loses capacity.

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