A comprehensive guide to protecting digital assets in your Will
Photo by Silas Baisch on Unsplash
This article provides some helpful advice and guidelines, but should not be considered legal advice.
What is a digital legacy?
‘Digital legacy’ is a vague term, but it generally describes all our digital property that we leave when we die. Property that exists in a digital format is called a digital asset and can be divided into several categories:
Media (music, photos and video)
Online reward points
Online payment accounts
Unlike other property, however, the rights to digital assets in someone’s estate are often unclear.
This article explores who can own and access your digital assets after you die and how you can protect them when you write a Will.
Who can own and access my digital assets after I die?
It can be fairly straightforward to close an account if the executor of your estate provides proof of death, but actually accessing the contents of it can be much more complicated.
Some service providers are extremely reluctant to provide access to online accounts, and many do not have specific policies for the death of a customer, or use unclear or deliberately vague terms. It is worthwhile making a direct inquiry with them before you purchase their services or write a Will.
What happens to my digital media files after I die?
Photo by Annie Spratt on Unsplash
It is important to know that when you buy a media file you often only purchase the right to use it. You do not actually own it!
Downloading a song from iTunes gives you a licence to play the music in your account, but you cannot transfer the account to someone else, even when you die. You can leave an LP, cassette or CD to someone in your Will, but not your digital music. This also applies to e-books and films.
It is reported that Apple does transfer accounts when somebody dies, but this seems to be a goodwill gesture that is against their official policy, and they retain the right to suspend it.
You can, of course, download music or ebooks to a hard drive and bequeath this to someone, but the company that provided the licences might refuse to work with them if they encountered any problems.
What happens to my social networks and email accounts after I die?
Managing your digital legacy is not only about accessing photos, but controlling your online presence after you die.
Facebook, Twitter and Instagram will delete the account of someone who has died, but require proof of death and the authority of the person who is requesting it.
As well as deleting an account, Facebook can also ‘memorialise’ it, so that it is clear that the person has died. Accounts can only be memorialised on request by a Facebook Friend that you have designated as a ‘legacy contact’ in your memorialisation settings. If you definitely want your account to be removed after you die there is also a preference for ‘delete after death.’
A legacy contact can only download information you’ve shared, including photos, posts, and your friend list, if you have turned this feature on in your memorialisation settings, or have authorised it in ‘a valid will or other legal consent document.’ Instagram can also memorialise accounts.
Twitter can remove photos or other media of the person who has died, but might not agree to do so if the person is considered ‘newsworthy.’
Many people do not realise that you do not own an email account and access to it after you die depends on the terms and conditions of each service provider. Whilst they can delete accounts if provided with proof of death, they are generally reluctant to release content and refuse to provide log-in details.
Microsoft can send the executor of your estate a DVD of your emails, but Yahoo seems to refuse all requests for any access at all.
GMail allows you to list a ‘trusted contact’ on its Inactive Account Manager that automatically shares specified data with them after a period of inactivity, but if you do not do this it also seems very difficult for your family to obtain any content.
What happens to my reward schemes after I die?
Photo by Jakob Owens on Unsplash
Points accumulated on reward schemes can become very valuable, but the terms and conditions of many schemes say that people who collect the points do not own them, so they are often untransferable.
Some companies permit the transfer of air miles to a person named in your Will, but others, such as British Airways, become void as soon as you die.
What happens to my online payment accounts after I die?
The most important digital assets to consider when you die are any accounts that might have money in them. Banks generally have very detailed policies for the death of a customer, but many different types of account now contain money, and the approaches of these providers can vary.
Upon receipt of evidence that one of their customers has died Paypal will close the account and transfer any balance to the executor of the estate, or someone else designated in your Will.
Other service providers, such as Amazon Associate, often do not have specific policies for this and transferring any balance to someone else might be at their discretion.
It is vital to provide the executor of your estate with details of passwords for any cryptocurrency you own. Cryptocurrencies are communal software projects that are not owned or managed by anyone and Bitcoin.org warns that ‘if the location of your...passwords are not known by anyone when you are gone, there is no hope that your funds will ever be recovered.’
How can I protect my digital legacy after I die?
You can make things easier for the executor of your estate by considering your digital legacy as part of your end of life planning.
Read the terms and conditions for any digital property or service closely so that you know what will happen after you die. Make inquiries with any service providers whose policies seem unclear.
Write a list of all your digital assets, including social media, with instructions on what you would like to happen to them after you die, especially any money that might be contained in an account.
Ensure that the executor of your estate can locate all of the log-in details for your account, by storing them securely, such as on a password manager. You should never include your passwords in a Will, because after you die it becomes a public document.
Make sure that no important information is stored in an email account or other platform that the executor of your estate might not be able to access.
One point that is emerging from the uncertainty of digital legacies is the necessity of writing a Will because dying intestate can make things very complicated and increase the distress of your loved ones.
The Law Commission for England and Wales is recommending that the minimum age for making a valid Will should be reduced to 16, because teenagers might have significant digital legacies that their parents or guardians are unaware of. In Scotland you can already make a Will when you are 12.
Digital legacies are a fairly recent development in probate law, but whilst there is very little legislation on it at the moment, this seems likely to change in the future. The Digital Legacy Association campaigns for clarity and improved rights for service users.