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Estate Planning in the Digital Age - How are my digital assets dealt with on my death?

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Today, we undoubtedly live in a world full of digital "online" influence – online banking, social media, online shopping and even virtual meetings using platforms such as Microsoft Teams and Zoom. Certainly the global pandemic has moved us all even closer to embracing a digital reality as part of our everyday lives.

When we take a look at our digital footprint and our online presence, such as our photos and social media accounts it does lead to a question – what happens to all of this when we die?

Well let's begin with what a digital asset actually is – digital assets in essence, are pieces of information in digital form as opposed to tangible assets like your house and your bank account. They are usually accessed through an online account such as with Google, Apple, Facebook and Instagram and include photos, e-books, music tracks, emails, videos an even cryptocurrency. These accounts are often accessed by a username and a password and whether it be for sentimental or financial reasons, it is important to plan what happens to these accounts on your death.

Now whilst most financial assets will pass in accordance with your Will, such as your online bank accounts, with sentimental assets in particular the difficulty arises with accessing the asset and therefore transferring control to your executors. Unfortunately, there is no blanket approach yet taken by service providers on how these can be dealt with and usually, they do not automatically recognise your executors as having any legal authority to access your accounts.

It is therefore, at least for now, necessary to think about enabling access to our digital assets following death. We have recently seen some well-known service providers create access policies allowing users, during their lifetime, to choose those to be granted access rights on their death:

  • Apple/iCloud – the ability for users to add a 'Legacy Contact' to their account. This should be a person the user trusts to access their data stored in their Apple account after their death, without the need to provide Apple with a Grant of Probate. Apple will provide your contact with a unique access key which would need to be presented to Apple along with the user's death certificate. Importantly, this would not allow the contact to access the users' payment details or Keychain passwords.
     
  • Facebook – similar to Apple in that the user can select a 'Legacy Contact' to take control over certain aspects of the account. The contact will be able to delete or memorialise the account. They will not be able to access the user's messages and they would not be able to post comments as the user, only memorial posts about the user.
     
  • Google – users can nominate someone to be contacted by Google following their death allowing them to download the users' data, which the user has chosen to be made available on their death.

Digital assets with financial value, such as Bitcoin, again can usually only be accessed by way of a pass key. It is therefore important that if you do own any cryptocurrency, that the pass key or other account details for any apps or trading platforms used, should be provided to your executors.

In summary, we all need to be aware that digital assets are going to become a far more commonplace part of dealing with a deceased's estate in the near future. Given the lack of a consistency on how your executors can deal with your digital assets, the most important action to be taken at this stage, would be to ensure that you make a list of any digital assets you have together with any login details (including for your personal devices such as your phone, laptop and tablet). These can always be stored in a sealed envelope with your Will and then only provided to your executors on your death. Ultimately, this then gives you the peace of mind that all of your assets can be accessed and dealt with upon your death.

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If you need legal advice regarding this, or any other wills, trusts and probate matter,  please contact your local office, or complete our online enquiry form.

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