Digital Assets & Estate Planning

The TGB Wills and Estates team discusses how to make plans for your “digital possessions” after death.

Gone are the days of looking through old boxes of black and white photos, sitting down with the family around the projector and looking at slides, or even reading through old, paper love notes. The beloved personal diary kept under the mattress has been replaced with online blogs, and even the trusty filing cabinet has been sent to the kerb for collection; its files now scanned or saved onto hard drives or stored in the ‘cloud’. Novels and newspapers are becoming antiquities with eBook readers and news websites on the rise, and even the weekly food shopping or dress purchase can be done from the comfort of your armchair.

The way people express themselves, communicate with others, work and live have become as easy as a click of few buttons. There is no escape to the advance of technology and as time goes by more and more of our ‘possessions’ become digitised. Yet the laws covering these assets – ‘digital’ assets – are rather unchartered territory, and so it is important that each and every one of us understand what our digital assets are and the best way to manage them.

What are digital assets?

A digital asset is anything you own or have rights over that exists online, or is stored on computers or other digital technology.

A digital asset may only have sentimental value, or it may have monetary value and be of considerable worth (such as a professional blog/website that generates a high volume of traffic and advertising revenue).

In some cases it may not even be an asset at all, such as a license to use a music service to listen to a song. And often a license or an agreement cannot be given away or form part of an estate, and instead comes to end simultaneously as does the holder or user.

Where the notion of digital assets fits among other traditional concepts of property is uncertain. Whether it is a form of intangible personal property, that is property we cannot physically hold or see, or whether it is a form of intellectual property is debatable. A digital asset may also change its form, for example, from an intangible item of stored ‘data’ to a tangible image printed on paper.

Most of us have some if not numerous digital assets. Below are a handful of examples.

• Email: Gmail, Hotmail, Yahoo, Outlook, Mailchimp
• Social Networking: Facebook, Twitter, LinkedIn, Google+, Myspace
• Blogs: WordPress, Blogger, Tumblr
• Video: Youtube, Vimeo, Vine
• Photos: Instagram, Flickr
• Data storage: Dropbox, Google Docs
• Web domains and hosting: Go Daddy, Crazy Domains, FatCow
• Shopping and Business: EBay, iTunes, App Store, Google Play, PayPal, Amazon
• Online games: Online card games, general gaming, PlayStation/Xbox online

Why plan for digital assets?

Here are just a few reasons.

To record history, memories and life

Stories, photos, videos, songs and letters help keep a person’s memory alive. Yet nowadays obtaining these and other keepsakes isn’t simple. It now often requires an ability (and arguably a legal entitlement) to gain access to much of their digital assets.

They might have numerous photos stored on a hard drive or in online storage, or stories saved onto blogs or twitter feeds. If you cannot access these assets, or they are closed down due to inactivity, much of what is needed to record historic memories and life will disappear into a digital void.

To assist your executors when you die

With the increase in online banking, it becomes more and more difficult for executors to determine what bank or credit unions a deceased person was a member of.  As businesses may try to be ‘green’ and environmentally friendly, the amount of printed bank statements and invoices decline, making life extremely difficult for executors if they are not aware of usernames and passwords of various accounts.

Outstanding debts may be saved in emails and details of who a person banks with could be one or more of several businesses accessible only with information from the deceased.

It is your executors who pay your debts, and call in and then distribute your assets. Whether you have a little or a lot of digital assets, the more you can assist your executor before you die the easier and faster they can administer your estate.

To ensure your wishes are followed

Individual persons will have their own wishes as to what they want to happen with their digital assets when they die.  For example, many people will want all their photos or comments stored on social networking sites to be downloaded or printed and given to their closest relatives. Some may want saved emails to be given to their partner or in other cases deleted without their content being made public.

By planning for them, a person can make their own choices about what is to occur upon death.

To manage online businesses

It is not uncommon for people to have an online business with incoming and outgoing orders and online business accounts. If a person dies without providing another with the ability to access their online business, much chaos can arise, such as debts falling to the estate and perhaps the loss of continuation of a successful business. A person may wish for their online business to be passed down to a family member upon death, and so needs to specify such a wish and the details of how to access and maintain it.

Identity Theft

Identity theft is a very real problem. Stale and unused accounts of deceased persons can be targeted by criminals, often providing them with easy access to credit card details and other personal information.

To prevent litigation

It is usually not an easy task to gain legal authority to access a deceased person’s digital account or digital assets. In fact, as I have personally learnt, it is often not an easy task to even determine what an online company or business requires a person, such as an executor, to do in order to access a deceased’s accounts or assets.

And be aware that the internet has no physical boundaries and laws differ from place to place. Business policies vary and requirements to access digital assets (if a business even permits access at all) generate all sorts of questions relating to privacy and ownership.

There have been legal proceedings in the past where parents had to fight Yahoo! to gain access to their deceased son’s emails.

So what now?

The best way to start thinking about your digital assets is to put pencil to paper (or rather fingers to iPad) and make a list of all of your digital assets, as well as online or computerised agreements and licenses. Also write down where all of your digital photos, movies, music, eBooks, blogs and so on are stored.

You must then think about what you’d like to happen to these assets upon your death. Do you want them to be closed down, “memorialised” (like what can occur on Facebook), transformed into tangible property and printed or recorded onto disc or transferred to a new owner.

You will need to provide your usernames and passwords, as well as answers to secret questions, but you won’t want to store usernames and passwords together for security reasons. Therefore, you might wish to store one list in your bank’s or lawyer’s deed safe and another in your safe at home.

You will also need to think of someone tech-savvy to manage your digital assets – in a way someone to be your ‘digital executor’ and call in and distribute your digital possessions.

Executors can also obtain assistance if needed from a likewise ‘tech-savvy’ estate lawyer to help administer a deceased’s digital estates. Most businesses require certified copies of death certificates, probate or letters of administration, identification of executors, and other important details to be sent to them with various instructions before they will do anything with a deceased person’s digital assets.

The concept of ‘digital assets’ is no longer an idea of the future; digital assets are very real and are very much present right here and now. Lawyers and clients need to start facing this ever-growing and increasingly valuable form of property, and must carefully consider digital assets amidst hazy and conflicting laws in a progressively digitised world.

For advice about your Will or Estate issue, contact your nearest Tindall Gask Bentley office. You can also start your Will online here.