Digital assets

Should they be included in a Will?

What are considered ‘digital assets’?

Digital assets are electronic files that have money and/or sentimental value and can be owned or transferred by individuals. They can also be used as a currency to make transactions or as a way of storing information or data.

Examples of digital assets include cryptocurrencies (eg bitcoin) and digital media (eg photographs and videos along with other personal digital assets such as social media and email accounts).

What are the key issues relatives face when trying to deal with a deceased loved one’s digital assets?

Whilst many digital assets are likely to have more of a sentimental value rather than financial, it is an area of law that is generating plenty of media attention and raising new challenges. Some of the key issues are:-

Identification

Now that assets have become ‘virtual’, it is unlikely that there will be any paperwork associated with that particular asset. This therefore poses a problem for the deceased’s family members/and or executors in being able to identify what assets are held in the estate and without knowledge of how to access them.

Lack of co-operation

A survey completed by STEP (the Society of Trust and Estate Practitioners) in conjunction with the Queen Mary University of London indicated an uncooperative attitude from some service providers in situations where accounts could not be accessed and the emotional attachment/value to digital assets including messages and pictures that are stored on social media accounts.

Ownership

Similarly, there is lack of clarity when it comes to legal ownership and managing access to digital assets. It is important to check the terms and conditions of such social media sites as some are known to be able to appoint a ‘legacy contact’. This allows the chosen person to be able to make decisions about the account after death, such as whether to delete the account or for it be memorialised.

How can someone include digital assets in their Will?

Careful thought should be given to any digital assets somebody may own, especially if those assets have monetary value. When preparing a Will, it might be advisable to create a separate document known as a ‘letter of wishes’ listing some of your digital assets. This is an evolving area of law and each asset is unique so great care must be taken when making provision.

What happens to your online subscriptions and digital downloads after you die?

When purchasing digital assets it is important to check through the terms and conditions to decipher ownership. It may be that you only have a licence to use the service and so it cannot be dealt with under your Will.

For example, online subscription accounts such as some streaming services or digital downloads, such as e-books or music downloads, are licensed and therefore cannot be transferred. This means that on your death these licenses will expire. It is important to note that what happens to these downloads and subscriptions on death will differ in the terms and conditions of each provider.

How can a solicitor help you plan your digital legacy?

A solicitor will advise you of the options available when it comes to planning and succession and can assist and advise you by helping to do the following:-

Make a list of assets

Keep a record of your digital assets and make sure that that list is regularly updated with new assets you may have i.e. preparing a list of social media accounts, downloading services, email accounts etc.

Consider what you wish to happen to those assets

Once you have made the list, your solicitor can help you consider what you would like to happen with your assets in the event of your death and research into the terms and conditions for each service you may use. These terms will set out ownership and access rights.

Make a Will

By drafting a Will, your solicitor will be able to ensure that your wishes are carried out and protected. Your solicitor may advise that it is worth talking to your family so they are aware of your wishes and appointing a ‘digital’ executor to deal with just those assets. Whilst an executor has the authority to deal with all assets, it may be that you wish to appoint a specific person to deal with your digital records.

If you have any questions about this, or any other question for our private client team, you can contact them here.

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