5 August 2019

Digital Assets and the 21st Century Estate

By Kieran Athow, Trainee Solicitor, Hayes + Storr.

With such a large part of our lives being consumed by technology and the internet nowadays, most people are likely to leave behind a significant digital footprint. From digital photographs and videos, to the use of social media platforms like Facebook, the majority of us will own digital assets. These should be considered when you make your Will, and included as part of your estate planning.

What are ‘Digital Assets’?

A digital asset refers to all content and accounts created and stored online, on your computer, laptop or smartphone. These can either be financial or sentimental, but they are all intangible and exist merely in digital form. Financial digital assets include your online bank accounts, domain names, your Paypal/Ebay balance and even the credit on your Tesco Club Card. Sentimental digital assets include your Facebook and social media accounts, family videos or photos and information held on Ancestry.com for example.

Can I really leave digital assets in my Will?

Most people have family photos or memories stored digitally. If you don’t take these into account when you make a Will, these precious memories could be lost.

The issue of whether certain assets can be left in your Will depends on the ownership and terms and conditions of the specific asset provider. Whilst it’s possible to leave photos and videos, and even an online bank account to a loved one, if you have an iTunes account – you do not own the music you purchase, but rather, you are granted a licence to listen to the music. Whether the licence can be transferred is down to the specific service provider’s terms and conditions. Facebook terms and conditions prohibit the account transferring to another person on death. However, they do offer to memorialise accounts as a way of remembering those who’ve passed away.

What do I need to do?

The question is often not whether the specific digital asset passes under your Will, but whether your executor(s) is aware of the assets and, if so, how do they obtain control of them after your death?

It is possible to appoint a specific ‘digital executor’ in your Will to deal with your digital assets separately. You may wish to do this if your existing executor(s) is/are not technologically savvy or if you do not wish them to have access to your digital assets and other personal information.

To ensure that your executors are aware of what digital assets you own, it is a good idea to keep a list of these assets together with passwords, which can be accessed by an appointed executor on your death. However, it is imperative that you take legal advice to incorporate your digital assets into your estate correctly. Under the Computer Misuse Act 1990, it could be considered fraudulent for executor(s) to access your digital accounts after your death without authorisation or in the proper manner.

If you don’t incorporate your digital assets into your estate planning, potentially valuable and sentimental assets will be lost from your estate or be forgotten about. The law on digital assets in the UK is still loitering in the past. Don’t let your Will do the same.

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.