Digital Assets and your Will

We live in a society where more and more people appreciate that it is important to make a Will to ensure that your wishes are carried out following your death in relation to your assets and indeed any funeral wishes.  Ensuring that you have a legally binding Will means that you are able to direct who will deal with your estate (your Executors) and who will inherit any personal items, specific amounts of cash, your property and the residue of your estate (any assets not specifically mentioned in the Will).  Your Will also gives you the opportunity to appoint guardians for any minor children or make provision for a favourite charity.  However, as society moves forwards we are entering a new age where digital assets are now a feature of many of our lives.

So, what is a digital asset?  There is no legal definition in the UK for digital asset, however in the US they define these as “a record that is electronic” with this definition now being adopted worldwide.  There are three types of digital assets, tangible personal property – something that can physically be given to your Executor or Personal Representative following death, for example a hard drive or memory stick, intangible personal property – such as rights associated with information which may be transferred to your Executor or Personal Representative such as social media, email etc and finally contractual rights – these are usually digital assets subject to an agreement, for example an iTunes account.  According to a survey by the Office of National Statistics in 2017 89% of adults in the UK had, in the last 3 months, accessed the internet, whilst only 9% said they had never used the internet.

You may be wondering how you can protect any digital assets in your estate.  It is advisable to keep a note of your login details and passwords on a offline storage device or in paper form, ensuring that your Executors are aware of the whereabouts.  However, it is imperative that your login details be kept separate to your passwords to avoid the possibility of them being stolen.   When your estate contains digital assets, you should consider appointing a Digital Manager or Digital Executor, whilst these terms are not legally binding it is an expression of your wishes.

Many of us have social media accounts, sometimes on multiple platforms.  You may now be aware that some of these now have an option for Memorialisation.  Facebook has a memorialisation mode which keeps your account visible after death as per your privacy settings, and your ‘friends’ can share memories of you to your profile.  A Legacy Contact would have to be appointed and they are able to change your profile picture and add posts, for example if a memorial service were to take place.  The account can be deactivated by your Legacy Contact at any time.  Whilst in this mode your profile would not be seen publicly, nor would it appear on ‘people you may know’ banners.

Cryptocurrency is also rising in popularity, this includes such as Bitcoin and Paypal.  Balances on accounts such as Paypal can be gifted in your Will as a digital asset.  However, it is important to remember that many of your rights relating to digital assets will be subject to terms and conditions of the service provider.

For example, if you have accounts such as iTunes or Kindle you have entered into an agreement with them whereby you don’t own the content but rather you are in effect leasing it from them, this of course ends on your death as per their terms and conditions.

If no directions are given in your Will regarding any digital assets they will be disposed of as part of your residuary estate.  For advice on this issue, or on any other issue related to making or amending your Will, contact our team of experts on 0800 015 0340.