Despite the ever-growing role of social media and online services in people’s lives, they often neglect to include their digital estates in their estate planning. This can lead to headaches and complications for heirs during an already difficult time, and raises the question of who inherits the digital data. Leaving instructions and information about a digital estate can help to avoid many issues surrounding this still rather new but important reality.
With more and more people using the internet to tweet, email, manage their bank accounts and make purchases, many records, photos and important business documents are now saved on remote servers instead of being kept in a filing cabinet or a shoebox. Keeping track of one’s own online activities and the many passwords that are created over decades can be challenging enough. For heirs, the problem is even more complex. Not only do they often not have the passwords to a deceased’s accounts, they usually have little to no idea of the extent of a deceased’s online activities.
More than just a Facebook profile
Digital estates consist of digital assets, digital devices and digital accounts. Digital assets are data in all formats, including emails, documents, audio, video, and social media and networking content. Digital devices are the electronic devices such as laptops and smartphones used for this data. The third element, digital accounts, are electronic systems for dealing with information. These provide access to digital assets and include email accounts, social networks, and online banking and shopping accounts.
When a person dies, it is important to identify and secure digital estates quickly in order to prevent fraud and loss, as well as protect the privacy and personal history of the deceased.
Who inherits a digital estate?
Legislation in most countries has failed to keep pace with technological developments, leading to uncertainty as to how digital estates should be passed on to heirs. In Switzerland, for example, digital data is not specifically regulated. It can therefore not be assumed that heirs will automatically inherit data into their ownership, and there is no legal basis upon which to request that data be released or profiles deleted. Further to this, much data are covered by the right to privacy. Although this usually expires when a person dies, it can again be difficult for the deceased’s family to claim entitlement to the data or have it deleted. Also, even if heirs have passwords to digital accounts, it can be considered a breach of the terms and conditions to log in with them if no prior arrangements have been made.
This problem is compounded by the fact that many internet platform providers and social media companies are based abroad. As a result, the legal relationships with users often come under foreign jurisdiction, which means that any request relating to data must, in addition to the estate’s own law, be verified under foreign law. Further to this, data is subject to the terms and conditions of the individual providers. These differ greatly from one provider to the next, and in the absence of precise instructions from users, default provisions tend to be applied.
For individuals resident in Switzerland for example, the situation is clearer for data stored on digital devices: these are inherited along with the device. Heirs of such devices also inherit any assets such as credit balances on PayPal or Bitcoin accounts. Data that are protected by copyright, such as computer programs, or photos with artistic value, can also be inherited.
Simple solutions for complex problems
Many platforms, such as Facebook and Gmail, allow users to give instructions in the event of their death. This enables a person to determine how they want their accounts and data handled. In practice, however, few people provide such instructions. And even if they do, they have only addressed one segment of their digital estate. In addition to giving such instructions, there are other measures that can be taken.
Managing one’s passwords is one way to ensure that heirs who are to be granted access can do so readily. This requires maintaining a secured, up-to-date list of accounts, user IDs and passwords for all databases and profiles. Another option is to incorporate access into a will: users can nominate an heir or other person to handle their digital estate and specify what is to happen to the data. This can include a separate list of the services used and the passwords for each of these. And finally, special legal authorisations such as an advanced care directive can simplify the desired handling of digital data in the event of incapacity.
These precautions will save heirs time and energy when confronted with this growing issue, and help ensure the deceased’s digital legacy will live on according to their wishes.