Planning for the (digital) afterlife – what happens to your digital assets on death?
Have you thought about your 'digital estate'? Many people are aware that they have a digital footprint through social media accounts, online gaming, digital subscriptions and services such as cloud storage, digital assets like cryptocurrencies, and perhaps their own online businesses. But few make plans to ensure that valuable digital assets (in monetary or sentimental terms) - what we might call the 'digital estate' - are accessible to their loved ones on death. Increasingly, service providers are building the tools to make it easier for their users to grant (or restrict) access to their data after their death. And as we live more of our lives online, the practicalities of managing our digital estates are becoming ever more important to consider.
A light-hearted approach to digital estate management came recently from the online gaming browser, OperaGX, who have created a 'deadman's switch' feature called 'Fake My History'. Using AI, after 14 consecutive days of inactivity, Fake My History will delete your browsing history and replace it with searches for animal welfare charities, mindfulness techniques and single-source chocolate, painting a 'rose-tinted' version of your life for anyone who might have access to your devices after your death.
On a more serious note, there is plenty that we can do to manage our digital estate to safeguard digital valuables, make estate administration easier for our personal representatives (PRs) and ensure that our right to privacy is respected. In this article, we list our top five best practice digital estate management tips. This planning should be carried out alongside, and as a complement to, your 'traditional' estate planning.
What is a digital asset?
Firstly, it is important to understand that not everything we think of as a digital 'asset' actually belongs to us in a legal sense. Broadly, under English law, we make a distinction between property and information. We can own property and pass it to our chosen beneficiaries by a Will, or else under intestacy laws. Things like cryptocurrencies and NFTs are treated as a form of property under English law and so you can make a Will to govern how they should pass on death.
However, information is not something that you can own, like you can own a house or a car. In a digital context, 'information' could include written material, photos, videos or music stored online or in digital format. Instead, you can have legal rights over information, such as intellectual property rights or copyright (although not all information will be of a sufficiently original standard to attract such rights). Only those rights can be dealt with under a Will like other forms of property.
Given that much of our digital information is mediated through online platforms such as email accounts, social media platforms and cloud storage, the rights to that information will often be governed by the terms of service that we were required to accept when we signed up. Such terms of service often do not provide for the rights of the user's PRs or beneficiaries after death, which means that there can be difficulties obtaining access to the deceased's account, as discussed further below, or the deceased's rights can be terminated altogether. For example, frequent flyers with British Airways may be disappointed to discover that they do not really 'own' their carefully-accrued air miles, which are cancelled on death under British Airways' terms of service (although, anecdotally, there may be ways to circumvent this).
In this article, we will use the term 'digital assets' to include all of the above, even though some digital information or contractual rights may not strictly be capable of passing under a Will. However, we do not consider physical digital devices, like computers, hard drives and mobile phones, to be digital assets, although they are often an important access point for digital assets. The ownership of physical items like laptops passes on death as part of a person's chattels (personal belongings), and unless alternative provision is made for any digital assets stored on the laptop, ownership of/access to such digital assets is also likely to pass to the same person(s).
Best practice tips
1. Make an inventory
The first step to manage your digital estate is to draw up an inventory of your digital assets and physical (digital) devices on which they are accessed. An inventory will be useful when preparing your Will to identify assets that require special consideration, and after your death it will help your PRs to identify where relevant financial or other information may be stored that they need to administer your estate. It may also help you to see where you can consolidate your digital footprint or clarify your digital wishes.
The inventory might include email accounts, social media accounts, communication platforms, cloud accounts, digital vaults, gaming accounts (including in-game assets like avatars), cryptoassets, web domains, payment accounts (eg PayPal), online shopping or subscription accounts, loyalty programmes such as air miles, and even home management services like remote-controlled thermostats and voice-activated speakers. STEP (the Society of Trust and Estate Practitioners) has published a detailed inventory online which anyone can use as a starting point.
The inventory should also note which assets have monetary value. PRs have an obligation to call in the assets of the estate (ie all property owned by the deceased) for the benefit of the beneficiaries, and they may be personally liable if they fail to identify valuable assets forming part of the estate. However, if the deceased owned, say, a collection of valuable NFTs, but left no information about it, the PRs may not even know to look for it. On the other hand, PRs are not obliged to incur costs obtaining access to digital information which does not have financial value, and so if they know which accounts contain the most important information (eg photos) and how to access them, this will greatly assist your beneficiaries if you wish to grant them access after your death.
Note that when preparing an inventory, care should be taken regarding the sharing of passwords. STEP recommends that passwords and PINs are kept separately from the inventory, and notes that most service providers will prohibit password sharing. The security implications of creating an inventory always need to be considered on an individual, case by case basis.
Withers works closely with Zenplans, a digital estate planning platform that enables individuals and their advisors to hold all essential information regarding their digital assets (as well as wills and other financial information) in a secure cloud-based account. This account can be accessed by family members, advisors and executors at the appropriate time.
2. Research Legacy Manager features
Some of the most common online platforms now offer digital legacy managers to give users choices about what should happen to their data when they die. The most well-known examples are:
- Apple Legacy Contacts
- Google Inactive Account Manager
- Facebook's Legacy Contact Memorialisation feature
- Instagram's Memorialisation feature
Other platforms, such as Twitter, do not allow the appointment of a legacy contact and only provide for the deletion or deactivation of the deceased's account.
While some people may not feel strongly about the afterlife of their Facebook profile, for others, particularly those with a prominent public profile, planning around their social media accounts should be considered essential. They should check the terms and conditions of each platform that they use, as they vary widely.
Ideally, the appointment of a legacy manager should be coordinated with the appointment of executors under a Will, where appropriate.
3. Prepare an access plan
Some digital assets, such as cryptoassets, may have complicated password arrangements which require you to write down an access plan for your PRs. This will be the case particularly for 'non-custodial' crypto wallets (where the private key is managed solely by the owner). Given that loss of the private key will, in most cases, result in the loss of the cryptoassets to which the private key is linked, it is essential that access to the private key is secure on death. It may be sensible to create back-ups and store them on other media or in other places. For very valuable crypto holdings, it may be appropriate to split the private key between several trusted individuals, or utilise secure vault storage (but check whether the deposit will be insured).
For custodial wallets, where a third party manages the private key, it will be important to review the access procedures of the custodian or exchange on death, ideally while the individual is still alive. Some custodians will have a formal process in place and may ask for documentation from the PRs, such as the death certificate, the Grant of Probate and the Will, if any. Others may have no particular arrangements in place which can give rise to costly delays in the estate administration.
Note that lawyers are unlikely to be able to store private keys for clients due to liability concerns and regulatory prohibitions.
4. Create hard copy back-ups
To avoid issues accessing online accounts after death, you could download important information or sentimental items like family photos onto a physical storage device like a hard drive, or even print them out. Again, however, consideration should always be given to the security of any sensitive information.
5. Make a Will
Finally, making a Will is important regardless of your wishes for your digital estate. However, a Will can support your digital wishes. For example, in a Will, you can make legacies of specific digital assets or digital rights (such as intellectual property rights) to particular beneficiaries; you can appoint digital asset executors if your estate contains digital assets with significant value or complexity that would justify this; and your lawyer can include wording granting your executors authority to deal with your digital assets, which may be helpful to show to third party service providers.
You can also have a letter of wishes alongside your Will to provide more detailed guidance to your executors regarding your wishes.
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.
