Digital death is still a problem. A widow’s battle to access her husband’s Apple account

Have you considered your digital legacy?

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Our world is becoming ever more digital, changing how we interact nationally and internationally. Traditional barriers are being broken down without the need to travel, creating a whole new form of human interaction. The result is that the internet has created a new type of property and with cyberspace having no physical boundaries legal rights have to be redefined in relation to matter such as ownership, transferability and duration of ownership. It is estimated that the value of our digital assets is approximately £25 billion and this is only set to increase as more and more of our lives are captured and stored in digital form. As a result we now have to also consider our digital footprint in light of incapacity during our lifetimes and, inevitably, death. The question is: have you considered your digital legacy?

What is a digital asset?

Surprisingly, there is no legislative definition of what constitutes a “digital asset” in the United Kingdom. Digital assets can be understood to be any information that exists in digital form and this can be online or on a storage device.

Your digital legacy

Our personal digital assets include digital photos, online accounts, domain names, fiat currencies such as Linden dollars and Bitcoin, and social media profiles. Just consider how many text messages do you send each day? How many photos do you take but never print? They are all held in cyberspace and at some point will need to be accessed. If you would like your digital assets to be protected and to generate maximum financial return for your beneficiaries then you need to consider such assets in estate planning when preparing a Will, or you may need to update your existing Will.

However, it is not just our personal digital data we have to be concerned with but also those owned within a business. If you own your own business you also need to consider the business’s digital footprint, from online stores and mailing lists to company email accounts. It can be disastrous for a business when, for instance, accounts are frozen upon death, to prevent fraud, as it can restrict operations.

Making provisions for your digital assets is a modern day issue but should be considered as important as making provisions for your tangible assets, such as your home and personal possessions.

Safeguarding your digital legacy

How do you provide access for your attorney (during your lifetime) and/or personal representative (upon death) to your digital assets? You should not assume that friends and family know what digital assets you have. It can quite frankly be a nightmare to trace assets with no paper trail and no place to start.

Digital assets still need to be valued the same way that tangible assets are. Gaming assets and intellectual property may require a specialist valuer. In your Will you may also wish to consider about an executor purely to administer your digital assets especially if you have a business assets and you may wish to appoint someone with more technical abilities and/or you wish to limit you has access to your data.

Therefore, it is recommended that you take an inventory of your digital assets as this will make it easier for your attorney or personal representative to locate accounts and so on. Also you can leave clear instructions in a letter of wishes as to how you would like matters to be dealt with such as “delete my twitter account”. This should also save time and money, and most importantly it should prevent sentimental and valuable material never being recovered. However, such a list must be kept safe and it is recommended that information is encrypted. We do not recommend listing passwords and pins. There are password management companies that can store such data on your behalf.

Apart from locating assets the other issue when making provision for your digital legacy is that every provider seems to have different rules on how an attorney or personal representative may access your digital data. This is because, as mentioned above, no uniform legal procedures are yet in place and so it is down to the individual providers to determine what occurs. It is hoped that this will be addressed in legalisation the near future as in the United States of America via the Fiduciary Access to Digital Assets Act, Revised (2015), which has been enacted in some States.

Some providers such as Facebook have brought in procedures such as the “Legacy Contract” feature so that you can nominate someone to have access to your account upon death. Many of the assets we have are licensed to you such as Kindle content and Apple Music. Thus, the contract ends on death. This means it cannot be passed on to a beneficiary unlike say a CD.

Word of warning

It is important that an attorney or personal representative does not access any of your digital assets before checking the terms of service and sending a certified copy of the power of attorney or grant of probate to the provider. A failure to do so may be considered an offence under the Computer Misuse Act 1990. Therefore even if an attorney or personal representative has your password they must be very careful in using it in case they break the law. Also consider cross-border issues as what may be permitted in one country may not be in another. The USA, Canada and Australia all have legislation making it an offence to gain unauthorised access to digital assets.

5 practical things you can do now to protect your digital legacy:

  • Make a list of your digital assets
  • Decide upon a safe place to store this information
  • If you own a business review its digital profile
  • Contact me on 02072400521
  • Make or update your Will and/or power of attorney to include your digital assets

This is a developing area, which cannot be ignored or overlooked when making a Will or a power of attorney.

Eleanore

Eleanore

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