Should my Will refer to Digital Assets

The first question that has to be answered is what do you mean by digital assets?

Most of us probably think that it included our Facebook and Twitter accounts, along with email, cloud storage, iTunes and for those of us brave enough to have them our Bitcoins. Some might also argue that a digital bank account is also a digital asset.

The second question is do you own your so called digital assets?

The answer to this question is, certainly at the present moment very uncertain. There seems no doubt that you do own a digital bank account along with any other similar de materialised assets such as sharestore accounts holding shares. In the UK a fairly recent court case has upheld Bitcoins as digital assets which were capable of ownership and of tracing. However ownership of all those other so called digital assets is far less certain. If you look to the terms of your Facebook or any similar account what you have is a platform which you are licenced to use in accordance with rules imposed by the owner of the platform, as Donald Trump rather belatedly discovered when he was finally banned for repeatedly ignoring the rules. Added to this is an additional complication that many of these platforms are owned and sometimes run by offshore organisations (frequently American) which can lead to uncertainty as to which country’s laws and courts govern the platform.

It follows from this that the next question is what rights do I have in relation to the content of my Social Media and other accounts?

During your lifetime your rights are defined by the terms of your licence but broadly speaking you can within reasonable limits do whatever you want and upload and download items to those accounts at will.

But what happens when I die?

Here in most instances the picture is a lot less clear. Currently most of the big providers freeze accounts and do not allow access to them by family or friends, in some cases (for example Facebook) the account may be “memorialised” which means it can be viewed but is otherwise frozen. However there have been a few recent cases where a deceased person’s family have been denied any access to an account. One report the writer has seen refers to a case where the deceased was writing a book and storing the drafts in a cloud account, his family have been unable to access the work. Similarly there have been reports that major ISPs have refused any access to an email account. These providers have stated that they will not allow access without a Court Order, on the face of it that may not sound unreasonable, after all as part of the dealings with an estate it is common to get a Court Order in the form of a Grant of Probate which gives executors access to the assets of a deceased. However it appears that the ISPs are not accepting Probates and instead are insisting on specific court orders.

Getting clear accurate information on these issues is not very easy but assuming these reports are correct then the situation is a little frightening. It could mean that important information or material of sentimental or possibly financial value is in effect lost. For example you order an item on line, the receipt and guarantee is emailed to you. A claim arises, but the relevant email account has been frozen and cannot be accessed, how do you prove purchase and entitlement to claim? Or what about your IPhotos account which is used to store photographs going back 15 years, can those photos be accessed and downloaded?

Being pragmatic it is unlikely that an ISP will discover about a death immediately and it may be possible for your family to access and download items before the account is frozen, but under the terms of your licence that is almost certainly a breach of contract and in theory could lead to adverse legal consequences for your family. Just what they will want when dealing with a bereavement!

The writer feels that the whole area of digital assets is one where law is in development, and indeed on 7th January this year the Treasury announced a consultation Crypto-assets such as Bitcoins, so it does look as though something is happening on this front although the writer suspects nothing will happen very quickly. Similarly many governments are beginning to look to increase regulation of the digital world. At the moment most of this regulation has related to such things as Privacy (ironically one of the reasons that releasing such things as Social Media accounts causes so many issues) and so called “fake news”, but it seems likely that over time regulation is going to have to extend to cover some sort of ownership protocol in relation to what rights we have over items that are held in our digital accounts. But until that happens more thought needs to go into how you control such assets.

The writer applies the following principles to his personal data:

  1. All important emails are downloaded and saved on his computer
  2. All photos on his IPhotos account are backed up on a portable hard drive
  3. At present he is trying to work out how to save everything on his ITunes account
  4. No documents are stored in the cloud, tempting as it is
  5. He keeps a note of most of his accounts and passwords in a digital wallet although his bank details are not written anywhere.

This is perhaps an extreme approach by a rather old fashioned lawyer who is still struggling not to keep everything in paper form but………

It is perhaps worthwhile mentioning as a Post scrip that in law all your assets vest in your Executors and therefore will be covered by your Will but it is suggested that there is a case for including in your Will an appointment of a Digital Manager with authority to deal with your digital assets.

If you require any further information on making a Will, please visit our Private Wealth and Inheritance hub. Alternatively, if you would like to speak to a member of our Private Wealth & Inheritance team, please call +44 (0)1276 686 222.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to your own particular matter before action is taken.

Graeme Black
Partner, Private Wealth & Inheritance
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This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

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