Digital assets after death?

21st May 2021 Wills, Trusts & Estate Planning

When people consider the assets they wish to leave to their loved ones under their Will, they tend to think of tangible items like their house or their personal possessions, as well as any savings or investments they might have. Whilst many of us spend a considerable portion of our lives staring at our smartphones, tablets or other devices, digital assets can often be overlooked when making a Will.

What are digital assets?

There is currently no legal definition under English Law of what constitutes a digital asset but it is usually known to include:

  • Social media accounts (such as Facebook, Instagram, Twitter and Linkedin)
  • Documents/ photographs/ videos stored in web-based or cloud-based storage (such as Google Drive, Dropbox or iCloud)
  • Music libraries (such as Apple Music, Spotify)
  • Cryptocurrencies (such as Bitcoin)
  • Blogs/ Vlogs

Despite most of us owning one or more of the types of assets listed above, most individuals don’t make preparations for how those assets should be dealt with after they are gone.

So why do digital assets matter?

  • Lost assets? Dealing with financial assets after someone has passed away can be an difficult task for bereaved families, but a further issue with digital assets is that families or executors may not even know that these assets exist making it hard for digital assets to be identified.

    This is especially important when dealing with assets of a financial value, e.g. online gambling accounts, PayPal, Ebay or even cryptocurrencies such as Bitcoin.
  • Assets not provided for? Most people are not familiar with the way laws relating to intellectual property or privacy may apply to their digital assets after their death and therefore may not leave instructions of how they want these to be dealt with.

    With most social media account such as Facebook, Instagram or Twitter it is likely that the right to operate these accounts will expire on the death of an individual. However, you may have views about how you wish your personal representatives to deal with these accounts, which are likely to hold personal and private information.

    For example Facebook allows individual users to decide in advance whether, following their death, they would like their account to be permanently deleted or memorialised. If an account is memorialised, content the individual shared will remain visible, and the word ‘Remembering’ will be shown next to the deceased’s name.
  • Valuable IP rights? With the proliferation of media platforms and the increase in consumption of creative output of all types, it is now common for people to earn at least part of their income online. It is worth remembering that any original content (such as blogs, vlogs, articles and artwork) that you create and post online is often an asset that you are entitled to pass on under your Will.

    These creations may be protected by copyright or other intellectual property rights, and could potentially be sold or licensed to a third party by your beneficiaries. Alternatively, your blog or website may have been generating an income through advertising placed within its pages, and you may be keen for your beneficiaries to continue to benefit from this income stream.

    We would suggest reviewing the terms & conditions of the service provider in question to check what you agreed to when you signed up to use the platform. This includes what rights in the content you keep and what rights you may have assigned to the provider, and also the terms that come into effect on your death.

Practical steps to ensure digital assets are safeguarded after death

So what can be done about it? The Law Society recommend that individuals should leave clear instructions of what digital assets they own and how they would like these assets to be dealt with after their death.

We would recommend that when making a Will, you assemble a list of digital assets and/or accounts you may hold including any usernames required to identify these. We recommend that store the list in a safe place and providing a copy to your solicitors and/ or the proposed executors of your Will. These lists should be reviewed frequently to ensure that the list is up to date with the frequent changes in technology.

The JMW team have vast experience in creating Wills and Trusts and in ensuring that both tangible and intangible assets are properly dealt with. If you would like to create a Will that will protect your legacy please call 0345 241 5305.

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Rachael Sykes is a Trainee Solicitor located in Manchesterin our Trainee Solicitors department

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