Until such time that the law has evolved to allow digital asset wills, it is vital to ensure that your executors and beneficiaries have the means to access your digital assets on your death or risk losing them entirely, writes Nadine Wealands.
Despite living resolutely in the Information Age, there is surprisingly little legislation designed to protect what is known as ‘digital assets’ in the event of a person’s death. Nadine Wealands, an associate in the private client team at Roythornes Solicitors, discusses what processes can be put in place to ensure your bytes remain in the hands of your loved ones.
As society continues to circumnavigate its way through the ever-evolving digital age, myself and my clients are facing an increasingly common issue with ownership of the digital world. Imagine, as many people do, you have an extensive online music library that is part of you, defines your journey through life and, naturally, you would like to leave this legacy to your beneficiaries. There is a will in place which outlines who inherits your assets – covering the traditional areas of finances, property and personal possessions – but have you considered everything you ‘own’? Have you considered what happens to your digital assets?
We use electronic devices every day from laptops, tablets and mobile phones for more than just communication; we use them as place to create and store documents, listen to music, read books and watch movies. We have social media accounts to share our pictures and videos. We buy and sell through PayPal and eBay, but what happens to our online accounts following our death and, most importantly, who do they then belong to?
Whilst there is no formal definition, a digital asset is an asset that has value, can be owned at some point, but it has no physicality. There are many types of digital assets – music, e-books, social media accounts, iCloud accounts and cryptocurrency to name a few. It even goes so far as to include characters that are developed through online gaming or MMOGs (massively multiplayer online game) which can create virtual currency.
Questions naturally arise about how these digital assets are dealt with on death. Can ownership of them be passed by your will for example? Whilst the physical objects, specifically the devices themselves, can be passed on in a will, issues often arise with regards to ownership of the content accessible on them.
With each digital asset, a licence or agreement is granted when you open an account, such as iTunes, Facebook and Twitter, and the licence provides you with the ability to download and listen to music or podcasts, read e-books and post comments, photographs or videos. The accounts are governed by the terms and conditions which you will have agreed to when ticking that box after ‘reading’ the terms of the agreement, and often these agreements will be created to comply with current law in their jurisdiction.
Within the agreement there will also be restrictions preventing unauthorised persons using the accounts. A prime example of such use is a case in the United States involving access to an Apple iPhone, whereby accused iPhones were password locked and Apple refused to unlock the devices. The case was further complicated as the phones were given to the accused by their employers.
The FBI obtained a warrant with the employers’ permission but Apple would not comply, stating that in order to bypass the passcode they would have to create and then install a programme that would bypass the security features. The argument was that if the new programme found its way into the public domain it could weaken Apple’s security.
Eventually, the FBI managed to break the passcode with the aid of an unnamed third party, but this case goes to highlight the importance of dealing with your digital assets prior to death to enable either your executors or beneficiaries to deal with them.
So, whilst at present you cannot make a will for your digital assets, there are some things you can do to ensure the right people have access to them:
Digital music files
Music libraries should be saved to an external hard drive if possible. iTunes accounts are not transferrable and end on death as you no longer comply with the set terms and conditions. There is, however, no further guidance as to what happens on death so consider passing on the account user information to a trusted person or set up a joint account for multiple users.
Ebooks
The above also applies to ebooks. Like digital music, the usage licence dies with the user and cannot be transferred. Again, consider giving your family the account details. It is worth noting some e-books are protected by DRM (digital rights management) which prevents copying.
Social media accounts
Social media sites would usually delete accounts, however your family can request that the account become a memorial on the proviso certain information is provided to the platform. Twitter unfortunately will delete the account regardless. To avoid this from happening, provide account details to a trusted person to allow future access.
Emails
Emails are personal and your family may wish to keep them however access may be denied. As with other accounts upon death the account may be deleted. Providing your executors with usernames and passwords will help them access accounts. Google has also created a tool which allows you to govern what happens to your accounts when you die, allowing you to name a contact if inactivity occurs and whether or not the nominated person can access and keep your data or if the account should be deleted.
Cryptocurrency
Cryptocurrency and bitcoins have been around since 2009 and are stored in a digital wallet. Due to its nature of being designed for anonymity and lack of control and monitoring, it has been seen as an easy target for criminals. However, it is possible to remove the currency and store it in a safe. By providing your executors with the username and password to your account, the currency can be accessed and your beneficiaries can inherit your balance.
Don’t take for granted that digital assets only have a value of sentimentality. From cryptocurrency to .com accounts, there is a value to be accessed whether a personal account or a business website that generates an income and has a more ‘tangible’ financial value.
Until such time that the law has evolved to allow digital asset wills, it is vital to ensure that your executors and beneficiaries have the means to access your digital assets on your death or risk losing them entirely. For more information and advice on protecting your digital assets, visit www.roythornes.co.uk or follow @roythornes on Twitter.