Consider the types of digital Assets relevant to you…
Data and information stored electronically or on a cloud;
- Online accounts – social media , email, online gaming;
- Intellectual Property – eg copyrighted material, Trademarks, computer codes;
- Websites or blogs generating income;
- Artwork, music, ebooks, or any digital IP generating income;
- Accounts used to manage money – eg PayPal, online Bank accounts;
- Domain names.
(Some of the above will have monetary value, others no monetary value)
What should happen to your digital assets after you die?
You should consider your wishes in respect of each digital asset – to whom should each be transferred? The decision will potentially vary depending upon the nature of the asset/its use/content etc. Should social media assets be archived/saved/ deleted? (Facebook, for example, has a ‘Deactivating, Deleting and Memorializing Accounts service’ through which you can designate a legacy contact to maintain the site as a ‘memorial page’. There is also an option for your Executor to close the page. It is understood there is no access to private messages.) Executors would require to provide proof of death and authority to act. It is understood there are different requirements for other providers eg Twitter/ LinkedIn/ Gmail.
Preparing a ‘Digital Assets Log’…
There are options as to how this may best be done on an ongoing basis.
One option is to :-
- Make a list of all online accounts – detail the email address/telephone number linked to each account and note password/log-in details for each;
- Ensure details are updated conscientiously as appropriate – essential to the continuity and management of your digital estate;
- Provide a note of where hardware items relevant to the Digital Assets are located, with passwords to enable access;
- Check Terms and Conditions and Licence agreements for each account involved. Do these specify what should happen after you die and if you actually own anything which can be passed on to beneficiaries? (Music, ebooks, films and other assets purchased under Licence are generally non-transferrable as you don’t own the material itself).
- Place the relevant information in a sealed envelope and lodge with eg your Solicitor, who is bound by a duty of confidentiality. The Digital Assets Log can be placed unopened with your Will and noted as held on the Solicitor’s records. You may, however, prefer to lodge the Assets Log with your nominated Executor, presuming you have full trust and confidence in their integrity (or indeed your Attorney under a Power of Attorney during lifetime – with written instructions not to open the Log or use the details unless there is a Certificate of Incapacity or similar letter of incapacity issued by your Doctor, and to hand over the Log to your Executor/s or ‘Digital Executor’ after your death (if a different person)).
- Another option to keep a Digital Assets Log may be to create a secure database and update the Log with passwords/log-in details for accounts etc as they occur – but clearly that must be accessible after you die, and there must be a separate note of the database password /log-in details kept with your Solicitor or Attorney or Executor so that the information can be accessed after you die.
Nominate a ‘Digital Executor’…
If your chosen Executor (or one of several Executors) is knowledgeable about social media, online accounts and technology generally, you can nominate that person in your Will as your ‘Digital Executor’. (Please note that there is currently no legal requirement to nominate a ‘Digital Executor’ and this is simply a practical option). However, the Digital Executor could be a different person to your main Executor – in which case they must account for financial assets and transactions, (or assets of value which may generate eg royalties), to your main Executor who is tasked with the administration of your estate, and in whose name Confirmation will be granted (allowing them to deal officially with the administration of your estate and uplift or transfer assets). Alternatively, you can stipulate that your Executors (if more than one) can agree who should be the Digital Executor from a practical perspective. If there is sensitive or confidential information involved in your Digital Assets, nominating an appropriate or suitably qualified individual as your Digital Executor may be more significant.
(It should be noted that the Digital Executor should not seek to access online accounts without authority from the service provider – otherwise, they may be in breach of the terms of agreement relating to the account and may even be inadvertently committing a crime. The Digital Executor should contact the service provider and gain access to the relevant accounts by arrangement with them.)
Please note that the above is a general overview only and specific legal advice should be sought in relation to your individual circumstances