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Wills & Probate: What happens to a person’s digital assets after they die?

02 April

Wills & Probate: What happens to a person’s digital assets after they die?

Not so long ago it was relatively straightforward to identify the assets in somebody’s estate after they had died because they were generally made up of buildings and land, bank accounts, insurance policies, pensions, and stocks and shares. Whilst problems might arise with complexities of shared ownership, or if the deceased had not been in touch with the organisations holding their assets, in the main they could be easily identified. If it was owned by the deceased, then it belonged to his or her estate…they were physical items. 

However, nowadays things are a bit different. Practically everybody has a mobile phone and a computer and use them to not only communicate with friends and family but to also manage their financial affairs. Some bank accounts are entirely online but most, even if they are physical, can be managed online.  

Therefore, when a solicitor administers the estate of someone who has died, we must now consider a whole host of other issues associated with a person’s digital assets. These include: 

  1. If somebody dies who can legitimately access and manage their Facebook or other social media accounts and pages?
  2. Who inherits somebody’s ‘library’ of ‘books’ if they are held on a Kindle or similar device? 
  3. If the family want somebody’s personal photograph album after they have died, where can they find it if it is stored in the Cloud? Whose is it anyway?
  4. Bitcoin and other Crypto currencies are examples of ‘digital assets’ which may have an intrinsic monetary value, for others they may simply have social and sentimental value. It’s our job to work out whether the deceased had any of these and establish who owns the rights; who can now access them; and who, if anyone, inherits them? 

It’s increasingly common for us to address these issues when administering the estate of a deceased, however we also actively encourage our clients to think about their digital assets when making their Will. 

People now need to consider what assets they have in the physical and the virtual world. Decide what they would like to do with them, as well as consider the intricacies of whether this is possible or not.  

There are many virtual assets that a person believes they ‘own’ but it is often the case that they don’t actually own the rights to it or it technically doesn’t even exist! The physical ownership of a computer or digital device which stores information might appear very straightforward, however the data stored on it might be held in several different jurisdictions around the world. Even if you can establish ownership or a right to the data this often leads to a whole set of other obstacles.  

There may be rules which prevent ownership transferring to a different person following death. For example, some social media organisations have their own provisions for ‘memorialisation’ which means that ownership belongs to the organisation rather than the individual.  Some people may be aware of this and take steps to arrange for memorialisation without realising that they don’t own anything. 

In the case of online banking users have passwords and other security measures in place in order to access their account. It’s not simply the case that you can give this information to another person so that they can deal with everything after your death, straightforward to simply give these to another person to deal with the account for you and may be in breach of the rules in any event. 

A 21st Century Will should take all of this into account considering both the value, the complexity, and the rules relating to the different types of digital assets to ensure that an Estate can be administered, and the intention of the testator can be put into action following their death.