Are you prepared for a digital afterlife? - Shepherd and Wedderburn

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Planning for post-death access and management of digital assets will save heartache for those left behind, says Campbell. Picture: Yui Mok/PA Wire
Planning for post-death access and management of digital assets will save heartache for those left behind, says Campbell. Picture: Yui Mok/PA Wire

Laptops and mobile phones are an integral part of daily life – the digital successors to the filing cabinet, the photo album, the CD and LP collection.

But what happens to those digital assets when we die? Since 2006, the percentage of adults using the internet has risen from 35 per cent to 86 per cent. That means an increasing number of people looking to safeguard access to their digital assets and information. Do digital files die with us?

Because of the complexities of the types of information stored online, as yet there is no precise legal definition of what counts as a digital asset. The assets exist in binary form, and come with a right of access or use. However, that right of access often dies with us.

As an example, according to the terms of use, an Apple/iCloud account, which may contain thousands of photographs or personal videos, terminates on death, at which point Apple may delete it. Social media applications such as Facebook and Instagram provide a little more flexibility, allowing a family member to delete or memorialise the deceased’s account. Twitter is proposing to do likewise.

This right does not extend to reading private messages, though in an isolated case a German court did permit a mother such access following her daughter’s death. These digital assets are generally of sentimental, not monetary value.

Planning will save heartache

There is also growing investment in cryptocurrency – which does have monetary value – increasing the need for clarity in legal definitions and access rights on death. The UK Jurisdiction Taskforce has released a statement that crypto-assets are to be treated as property in English law. This has important consequences, as property can be passed on by inheritance through testate or intestate succession.

On the other hand, assets that are not owned cannot be legally passed on. A good example of this is an iTunes account, where that extensive music collection comprises only a licence to use this media during your lifetime.

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Planning for post-death access and management of digital assets, whether of monetary or sentimental value, will save heartache for those left behind. When granting a power of attorney, consideration should be given to providing your attorney with powers to enable them to access and manage your digital information and assets. A digital will can be drawn up in conjunction with a standard will, or as a separate document, appointing an executor to deal with digital possessions on death.

Compiling an inventory of digital assets, checking the policies of various internet service providers, and preparing a list of online accounts and email addresses will give your attorney or digital executor a vital source of information.

A will is a “living document” that should be regularly reviewed. This is especially true in relation to our digital estate.

- Gillian Campbell, partner at Shepherd and Wedderburn