What happens to your digital assets when you die?
Increasingly we are moving our lives online. More and more of the things that are of value to us are being stored digitally. Photographs and videos are stored on the cloud, we stream music and videos through the internet and we use our phones to make payments. However, there are very few of us that have made any preparations for what will happen to our digital assets when we die.
The term “digital asset” is one that is becoming more common. Whilst there is no legal definition of what a digital asset is, it is generally taken to include any asset that is stored on a digital platform. This would include everything from email accounts, social media accounts, photographs and other digital assets such as crypto currencies. Whilst many of us may do our banking online, it’s important to remember that a digital assets is not the same as a physical asset (our money in the bank) that we only access digitally (via our online banking apps). (As mentioned later, it may be sensible to include any details of these assets in records that you may prepare in the future).
Sentimental Digital Assets
Most of us will own sentimental digital assets, often without even realising it. Any information, such as emails or photos, that are stored electronically, whether online in the cloud or physically on a computer, are digital assets.
Financial Digital Assets
In recent years, crypto currencies have increased in popularity. A crypto currency is a digital currency that uses cryptography to secure the asset in attempt to prevent it from being counterfeited. The most commonly known crypto currency is Bitcoin.
One of the reasons that Bitcoin is so popular is due to the fact that users to not need to identify themselves when sending Bitcoin to another user or when they are requesting a transfer from another user. When transferring Bitcoin, users will be checked to see that they have sufficient Bitcoin to make the transfer, but currently, anonymity is guaranteed.
When estate planning, crypto currencies can be particularly difficult assets to deal with. Specifically for Bitcoin, as it is not held in an individual’s name, it can be very difficult to deal with on death. The way that Bitcoin is held requires a user to access their Bitcoin via unique keys. If the keys are lost then the Bitcoin is effectively lost the same way as physical cash can be lost. It therefore might be sensible to consider either recording your unique keys somewhere secure for the future, or to consider moving your assets away from crypto currencies in the future when estate planning.
How to protect your Digital Assets
Whilst it is easy to store our sentimental assets digitally, in order to make sure that they can be passed on to loved ones, it might be sensible to make sure that they are backed up and stored on a hard drive or memory stick so that loved ones can access the assets simply by accessing the hard drive or memory stick.
Another option would be to share and pass on your log on details to your loved ones. This could be done in a letter of wishes that accompanies your Will. Whilst this might sound easy, it is important to note that this can breach some end user agreements. For example, the iCloud’s end user agreement states that “Unless otherwise required by law you agree that your Account is non-transferrable and that any rights to your AppleID and Content within your Account terminate upon your death.” What this means is that even if you pass on your log on details, or make a Will stating that your iCloud will pass to certain individual(s), Apple may still require a court order in order to make sure you are not in breach of the end user agreement.
Currently the law has not kept pace with how quickly digital assets have become mainstream assets. Until the law has caught up with digital assets, for now it would be prudent for individuals to make sure that they keep an inventory of their digital assets and update this regularly so that it reflects the digital assets that they own. What is particularly vital is to make sure that you keep a record of the log on details for your digital platforms so that that your loved ones can access these accounts on your death. Any such inventories and records should be kept in a separate document from your Will. This makes sure that they stay secure as your Will may become a public document during the probate process.
The challenge that your loved ones and executors will face is making sure that when they access your accounts, this is done legally. This will largely be a case of seeing how the law develops in this area and then reacting, when appropriate, so that your estate is as prepared as it can be.
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