Many service providers' standard terms and conditions stipulate that data will be automatically terminated on death. So, valuable emails or an online music collection could be lost, and loved ones will be deprived of the ability to inherit something that could be meaningful and comforting at a sad time. As online data is not a physical asset, it is unlikely that it can be gifted in a will in the same way as, say, a CD collection.
However, Google has recently started allowing users to stipulate in their account settings certain 'trusted persons' who are to be allowed access to the account after their death, or alternatively rule that the account should be deleted. Google is the first of the large internet service providers to offer such a facility. Facebook, by contrast, stands by a policy of customer confidentiality and allows executors to close a Facebook account or turn it into a memorial page but not to access it.
Given this uncertainty and to avoid what can become an upsetting issue for loved ones, the best way of leaving a digital inheritance is to create a list of your online assets, and the relevant usernames and passwords, together with the names of those you wish to have access after your death. This applies to email accounts, social networking accounts and devices such as mobile phones, tablets and MP3 players, web photo albums and gaming.
Such information should not be listed in the will itself, as this becomes a public document after death, but in a separate letter of wishes, drawn up to accompany the will, or in a separate spread sheet annexed to the will. The information can then be passed by the executors to the selected beneficiaries as soon after death as possible. In addition, for especially valuable online data, such as emails or photos, it would be wise to create hardcopies or save them to a disk or memory stick. Hardcopies can pass under a will as physical property. It would, of course, be sensible for those with Google-run accounts to update their settings with the names of their 'trusted persons', in the event of a problem with those persons accessing the accounts through information left in a letter of wishes or spread sheet.
The assumption is usually, and fairly, made that the residuary estate in a will includes all digital data owned by the individual and that, by default, the named beneficiaries will be able to access digital assets along with all the deceased's physical property. However, at present most internet service providers see the world differently. And it is not an area where UK courts have yet ruled.
So, the safest course is to leave details and specific instructions alongside the will, at least until the other major service providers follow Google's example. When we log out for the last time, we may want to make sure someone can log in later.
Originally published in The Resident Magazine
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.