Managing your digital afterlife

Gillian Campbell is a partner in Shepherd and Wedderburn’s Private Client team.

For most of us, laptops, tablets and smartphones are an integral part of life, the digital successors to the filing cabinet, photo album and CD collection, writes Gillian Campbell.

But what happens to those digital assets when we die? Due to the complexities around the types of information stored online, there is no precise legal definition of what counts as a digital asset. The assets exist in binary form and come with a right of access or use. However, that right usually dies with us.

According to its terms of use, an Apple/iCloud account, which may contain thousands of personal photographs and videos, terminates on death, at which point Apple may deactivate it. Social media applications such as Facebook and Instagram provide a little more flexibility, allowing a family member to delete or memorialise the deceased’s account.

Assets that are not owned cannot be legally passed on. For example, an extensive music collection held in an iTunes account may have cost the account holder a significant sum of money over the years. However, they only have a licence to use this media during their lifetime. An iTunes collection cannot be gifted, as a vinyl or CD collection can during life or by means of a will.

There has also been growing investment in cryptocurrency in recent years, increasing the need for clarity over legal definitions and access rights on death. This was the subject of an investigation by the UK Jurisdiction Taskforce, one of the six taskforces of the LawTech Delivery Panel, an industry-led group charged with supporting the digital transformation of the UK legal services sector.

The taskforce subsequently released a ‘Legal statement on crypto-assets and smart contracts, ’ which states that cryptoassets are to be treated as property under English law. This has important consequences, as property can be passed on by inheritance through testate or intestate succession. A practical difficulty for the executor of a person who was believed to own cryptocurrency is locating their digital custody key. This key code is vital in order to deal with the asset. The asset is effectively lost forever if the digital custody key cannot be found.

Planning for access to and management of digital assets following a person’s death, whether these are of monetary or sentimental value, will save heartache for those left behind. A digital will can be incorporated within a traditional will or prepared as a separate document, appointing an executor to deal with digital possessions on death.

Planning can also be undertaken, using a power of attorney, so that someone can act on your behalf in the event of a health issue or accident that incapacitates you. When granting a power of attorney, consideration should be given to providing your attorney with powers to enable them to access and manage your digital information and assets. Compiling an inventory of your digital assets and accounts, including user names and passwords, will give your digital executor and attorney a vital source of information. An online search shows that there are now many companies offering secure digital asset and password management facilities. You may also find it insightful to review the policies of your various social media and internet service providers.

Gillian Campbell is a partner in Shepherd and Wedderburn’s Private Client team. For more information, contact Gillian at gillian.campbell@shepwedd.com or on 01224 343549.


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