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Your digital legacy

Posted: 29th September 2016   In: Wills, Trusts and Probate

As individuals, we are increasingly acquiring digital assets which could form part of our estate following our death; a Paypal balance, an online gaming avatar, music, photos, social media accounts, and copyright in blogs to name but a few examples. Is it necessary to update your will specifically to include these assets and how would your Executors manage these assets following your death?

The first step is to make your Executors aware of all of your digital assets so nothing gets missed and to do this, the Law Society's Wills and Inheritance Quality Scheme Protocol recommends that people keep with their will a list of their assets, including digital assets. Leaving a list of passwords and PINs would seem an obvious help to your Executors; however, not only do most Internet Service Providers (ISPs) include in their terms and conditions a condition prohibiting you from recording details of your logins and passwords but also, your Executors need to be careful not to commit a crime under the Computer Misuse Act 1990 by using your logins to access your accounts without authorisation from you.

The safest course of action in dealing with digital assets is therefore for the Executors to inform the account administrators of the death in the first instance, and not to attempt to access the account themselves.

Do you need to update your will to take your digital assets into account? Depending on whether your digital asset is related to your business, an asset of sentimental value or a social media asset it may pass through different clauses under your will so it is worth reviewing your will to check that your digital assets would be inherited by the beneficiary you would wish. It may be clearer to include in your will a specific clause giving some or all of your digital assets to a particular beneficiary or beneficiaries.

It is worth noting that items bought from iTunes cannot be inherited by your chosen beneficiaries on your death. This is because iTunes operate on the basis that you are buying a licence to use the item for the rest of your life. On your death the licence ends and the items remain in iTunes’ ownership. Twitter, Facebook and other social media accounts may not have monetary value but could hold huge sentimental value. The terms and conditions of the account should specify what would happen to the account on your death. Generally, the social networking site will retain ultimate control over your account but as they often offer options with regard to what should happen to your account following your death, you can nonetheless exercise some control over what happens to the account by leaving instructions, ideally in a letter of wishes written in your own words, signed, dated and kept with your will. For example, Facebook will usually “memorialise” your page following notification of your death so if you would prefer your account to be deleted then you should make your wishes known.

As they become more common, the way your digital assets are dealt with following your death is becoming more regularised, and this is to be welcomed. As part of reviewing your will, however, ideally you would want to check the terms and conditions of the accounts holding those digital assets of greatest value to you and use specific clauses in your will, and side letters to your will, to ensure that you and your Executors retain as much control as possible over what happens to them following your death.

Please contact Josie Birnie on 01442 872311 if you would like more information about the issues raised or any legal matter relating to digital legacies.

This article first appeared in the September 2016 edition of the Hemel Gazette Business Eye.