Digital Assets after Death: Why Thousands of People are Choosing to Protect Them Through Their Will

What happens to someone’s digital assets after death?

It depends on what is in their Will. A person’s Will covers what happens to their physical assets (such as property, bank account, money, shares etc.). However, it rarely covers what happens to their digital assets. This is more important than you might think.

A recent case highlights the importance of considering your digital assets along with your physical assets in your Will.

Key Takeaway Points

1. Your digital assets (including all your digital devices and the data and information held on them such as photos, videos, documents, applications, music, software etc.) should be included in your Will. Otherwise, your family, friends, business associates etc. may need to obtain a court order to access them.
2. If your family or business needs to wait to access your digital assets then they may lose money due to missing information, documents, photos etc. or through not having access to your PayPal account, business web site, on-line store, social media accounts, etc.
3. Once they have obtained a court order, your family or business associates may be able to access all your on-line accounts, private folders, cloud based images and videos etc. some of which you might have wanted deleted or erased before giving them access.
4. With more people storing more personal information and data digitally and many individuals having on-line accounts with credit (e.g. PayPal, share trading accounts etc.) and money making services (such as on-line stores, lucrative web sites etc.), it is increasingly important to have these covered in your Will.
5. A Digital Assets Directory held by your solicitor can list and include the login details for all your hardware, software, on-line accounts, web sites, etc. and what you want to have happen to them on your death. It may be that you want to have some assets transferred and some erased before your loved ones or business associates have access to them. You can state your wishes in this directory.

Else Solicitors maintain a Digital Assets Directory which can be mentioned in your Will. This gives specific directions to your Executors to access your devices and accounts (along with the required login details) and what they are to do with the various digital assets held on them.

You can also include specific gifts of digital photos/music libraries etc. in your Will to ensure your wishes are clear. If you would like to update or write a Will that includes your digital assets and gives you the peace of mind that they will be dealt with according to your wishes, then please contact our Head of Wills and Probate, Kathryn Caple, on 01283 526230 or at kathryn.caple@elselaw.co.uk.

What are Your Digital Assets?

Your digital assets include your:

• Computers
• Tablets
• Smartphones
• Digital music players (e.g. iPod)
• Digital cameras
• e-readers (e.g. Kindle)
• External hard drives and flash drives

Along with any information or data that is stored on these or in the cloud, such as:

• Personal photos and videos
• Purchased or your own music, film and TV programmes
• Documents
• Images
• Presentations
• Spreadsheets

It also includes all your on-line accounts such as:

• e-mail accounts and their content
• Social media
• Shopping accounts
• Photo and video sharing
• Any website or blogs you manage

It also includes domain names and your intellectual property including copyrighted materials, trademarks, and any code you may have written and own.

Many accounts that may have a positive balance are held entirely online such as your:

• PayPal account;
• Digital currencies like BitCoin;
• Gambling sites;
• Share trading services;
• Points accumulated in loyalty programs etc.

It is important that you outline what you want to have happen to these including which data, photos, videos, music etc. should be:

• Transferred to family members, friends, or business colleagues
• Archived and saved
• Deleted or erased

What Happens if my Digital Assets Aren’t Covered in My Will?

A recent case highlights the problems of not including your digital assets in your Will.

A 20-year old man died following a brutal assault on Halloween in 2015. In the summer 2016, his father, Colin, was told by Apple that he must obtain a court order to access the photos and memories on his murdered son’s computer.

Colin had provided Apple with death and probate certificates but was told that he would need a court order to access the data on his son’s Macbook. The issue is that computers along with other digital devices and on-line accounts are password protected. In this case, the data and computer belonged to his son but as he did not have the password, Apple controlled the access to this data.

An Apple spokesman said: “In the absence of permission for third party access to an account, it is impossible to be certain what access the user would have wanted and we do not consider it appropriate that Apple make the decision. However, in such cases, we can assist subject to an appropriate court order.”

This means that his family must seek a court order to access his photos and memories.

In certain situations, this may have financial, as well as emotional implications. For example, if someone needs to access your on-line store or if your business needs the documents or information that you were working on or access to their own web site that you managed on their behalf.

Note: many web services and social media sites require you to sign their Terms and Conditions. In some cases, these terms will prevent your family, friends and colleagues from accessing your accounts even if they have your login and password details. So, it is important that you give the relevant people specific authority to use these accounts in your Will.

There is no easy answer as the law is primarily focused on physical possessions. However, by identifying your digital assets and stating what is to happen to them then your wishes are recorded and known. It is important that you create your digital legacy and with things changing constantly the best way to achieve this is by using a Digital Assets Directory, such as the one maintained by Else.

If you are concerned about what happens to your digital assets on death and who will and who will not have access to them then you are invited to contact our Head of Wills and Probate, Kathryn Caple, on 01283 526230 or at kathryn.caple@elselaw.co.uk.

She will explain your options and how our Digital Assets Directory works so that you can rest assured that your wishes will be respected.