With much of our lives now being documented online via social media and a range of other digital platforms, there is a big question mark over what happens to a person's digital assets when they die.

Many people have important and valuable work saved on their computers or stored in the cloud, which should form part of their estate upon their death. It could be a musical composition, business and financial records, intellectual property, a novel, historic photos, or even family snaps posted on Instagram and Facebook. Unfortunately, under current laws, these assets can be difficult to access after a person dies.

Dealing with digital assets in a will

Too often, people don't consider what happens to their digital assets and online records if they are no longer able to make decisions or they die.

A person needs to leave clear instructions in their will on how they wish their digital assets to be managed, also noting their online user names and passwords. If not, their family, business partners, executors and lawyers could be left with the complex and frustrating task of gaining access and determining digital asset ownership.

In addition, existing privacy laws can block access to emails, social media accounts and cryptocurrency accounts, potentially affecting a person's inheritance.

NSW Law Reform Commission exploring new legislation to reflect current online practices

A statement released in 2018 by the NSW Department of Justice outlined why it is necessary to examine the existing laws, which were introduced well before the arrival of the online world.

The NSW Law Reform Commission is reviewing current legislation impacting access to digital assets and online accounts after a person dies or becomes incapacitated.

With current laws failing to keep abreast of technological and lifestyle changes, this review has been broadly welcomed.

Introducing new legislation on digital asset ownership impacts a range of laws

Taking into consideration how other countries have updated their legislation to reflect the huge amount of work and social assets that are now stored online, the government encouraged the legal profession and other stakeholders to make submissions to the commission.

In response, a number of submissions were put forward and a range of related laws that could be impacted are under review. These include laws on copyright, privacy, crime, estate administration and wills. The policies and terms of service agreements of social media companies are also being examined.

Not all online accounts allow digital assets to be accessed after a person's death

Facebook and other social media platforms usually require proof of death before they close or "memorialise" a person's account by making it read-only.

However, Apple iTunes and Kindle e-reader accounts cannot be passed on after death. While the digital assets on these platforms cost money to buy, they are not actually regarded as physical music or book collections and are thus lost to beneficiaries.

Accessing business documents stored in the cloud can be difficult after owner's death

An increasing number of businesses are going paperless and storing their information and documents in the cloud. This can lead to considerable frustration, not to mention business interruption, if a business partner were to die and others need to access important data, particularly if the cloud service provider is located overseas.

If you are concerned about what will happen to your digital assets when you die, it's wise to consult a legal expert. You can then control who your digital assets go to upon your death, rather than have them disappear into the ether.

Tony Mitchell

Wills and wealth protection

Stacks Law Firm

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.