The digital world is becoming increasingly dominant in our modern lives, but few people understand what happens to their digital assets when they die. Indeed, as a profession, we too, are learning. What is clear is the distress caused to families and the loss to loved ones, if digital assets such as photos, music, videos, blogs, art, manuscripts, bank accounts and crypto currencies either cannot be accessed due to lack of user names and passwords or are lost forever.
Law Society research in 2021 surveyed 1,000 members of the public. Only 26% knew what would happen to their digital assets on death, 19% said they somewhat understood and only 7% said they fully understood.
There is clearly a long way to go to educate our clients on the need to make an inventory of their digital assets, on what devices they are held and how to access those devices, not only in the event of death but if that person loses mental capacity.
To help personal representatives and attorneys cope with this growing issue and to automatically grant them access to the contents of digital platforms held by the deceased or the incapacitated person, as well as to avoid costly and uncertain legal action against digital platforms, a Digital Devices (Access for Next of Kin) Bill was raised by Ian Paisley MP in Parliament on 18 January 2022, its first reading. Its second reading was due to take place on 18 March 2022, this has however been stalled.
Some headway is being made by platform providers to assist in dealing with digital assets on death. The offerings from some key providers are listed below:
Apple: has a digital legacy programme where you can designate up to five people as legacy contacts. These contacts can access information stored in the iCloud. However, this is only available on devices running IOS 15.2.
Google: you can set up an inactive account manager where there has been a period of inactivity, a trusted nominated person can be contacted. They will be contacted via email.
Facebook and Instagram: a legacy contact can be created in the person’s lifetime but they won’t be able to log onto the account to read the messages or remove friends.
The legacy contact can look after the memorialised account on your death.
PayPal: an account can be closed on production of requested documents, ie death certificate, ID for personal representative, letter from the personal representative identifying the account by the primary email address and stating the accountholder is deceased, copy of the will, letter of instruction.
EBay: if you do not have the account information of the deceased account holder you can contact EBay directly and they will assist.
Crytopcurrency: it’s not possible to access cryptocurrency without holding the private key. But this should not be shared with anyone, or in your will for security reasons. One solution would be to leave step-by-step instructions in a safety-deposit box or vault. Some cryptocurrency insurance firms, such as CoinCover offer a cryptocurrency will service where you are provided with a beneficiary card to give to your loved ones, identifying how they can access your currency. If you have any cryptocurrency, it’s worth discussing this with a solicitor when drafting your will, so you can make the proper arrangements.
A final important consideration is that there may need to be separation between digital devices and the information stored on them. The deceased’s ownership of the device does not necessarily mean they also own all the rights associated with the information stored on it, for example, if an iPhone device owned by the deceased has an active iTunes account a gift of the device under the deceased’s Will does not mean a gift of the iTunes account. The music on an iTunes collection is only a personal licence to use the music according to Apple’s terms of business, the licence is not transferrable and terminates on death. However, in other cases just because a digital asset might not be owned by you, it doesn’t mean you don’t have a say in what happens to it after you die.
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