We are all increasingly doing things online, from internet banking to social media to blogging to storing photographs and videos. This is an evolving area of the law, and there is some uncertainty over what a “digital asset” actually is. Key examples would be:
- Photos, videos, audio and other literary assets stored online
- Cryptocurrency such as Bitcoin
- Website domain names
- Blog content
- Monetised YouTube videos
Interestingly, online bank accounts and social media accounts are not legally “digital assets”. In the case of bank accounts, although the account is accessed through a digital portal, the underlying asset is the money itself, which is not digital. (I like to imagine that the bank has a huge, old-school vault full of gold coins somewhere instead.) With social media, people don’t own the accounts themselves; they are platforms that users have a license to use, which usually expires on that person’s death.
Facebook offers users three options on death. (1) permanent deletion (yes please) (2) memorialisation and (3) nominating a legacy contact . Memorialisation keeps the person’s account visible to their existing Facebook friends but doesn’t allow anyone to log on or extract the data. A legacy contact can be nominated during your lifetime by completing a form on Facebook. After death, your ‘legacy contact’ can then access the account and manage it to some extent, e.g. by updating the profile and cover photos, posting a final status and downloading a copy of everything that the deceased had ever shared on Facebook.
The Society of Trust and Estate Practitioners has a Digital Assets Working Group (the snappily-entitled STEP DAWG) looking into how best digital assets can be dealt with by Will, because there is a real gap in UK law in this area, at present. Woof. They have produced a helpful guide to ‘Planning your digital legacy’ which is aimed at legal professionals but still useful for clients, which can be found here.
What does all of this mean for your Will?
- At Chiltern Wills, we now routinely include a clause in Wills giving the executors power to access and dispose of a client’s digital assets, digital devices, software etc.
- It is also possible to appoint a special executor to deal with your digital assets. You may feel, for example, that your main executor(s) will do an excellent job with the probate paperwork, but that a tecchy, dare I say younger relative or friend would be far better placed to sort out everything online. A division of labour here may be the way to go.
- Some practitioners suggest writing a list of your digital assets and details of how to access them, to keep with your Will. A very practical suggestion in many ways, but worryingly insecure if it fell into the wrong hands.
- When leaving legacies, it is important to be very clear about what exactly is being bequeathed. In particular, with a computer is is important to be specific about whether you are leaving just the hardware, or whether you are also leaving the image files and copyright contained on it. E.g. ‘to my brother my Apple Mac computer together with all image files, copyrights or other intellectual rights’.
If you would like to discuss bequeathing your digital assets in your Will, please click the link below to get in touch.
