What happens to digital assets on death?

mobile phoneWho owns and can access your photos, music and social media account content when you die? And would bequests via a tweet hold water? Alan Eccles, of Brodies, outlines what happens to digital assets on death.

There is an ever-increasing interest in how digital assets are dealt with on death.

While digital assets as a term may be a neat catch-all, the issues involved divide these into distinct areas: ownership and use, access and privacy and electronic wills.

Digital assets can take many forms. Among other things, they may be online photos, music libraries, social network profiles or email accounts. Most of us don’t have physical records of such things; therefore, digital records can be of substantial value and may also be of particular sentimental value.

In many cases, these assets are indeed our assets and we have the right to do with them as we wish. So it would be fair to assume that this includes passing them to our loved ones when we die.

But what exactly can be done with our digital assets on death?

Do we own or use the content?

In terms of digital assets, we don’t necessarily own what we think we own.

When using online services, we regularly agree to terms and conditions, which mean that we are restricted in our use of these digital assets or, rather, digital services. We are contracted to enjoy a service, whether or not we think of it in that way.

In some cases, the content acquired or used is a licence to use which is stipulated in the terms and conditions to terminate on death. It is not something that can be bequeathed to your loved one. Your digital version of Kylie’s Greatest Hits may be something you wish the next generation to also experience, but as a lot of digital music content is enjoyed on a licensed basis, it may not be yours to pass on.

The same can be said of photos that we upload to some social networking sites. Some sites tend to state in their terms and conditions that they own any content that you upload.

Nevertheless, you do have ownership of photographs and songs that are stored electronically on your devices. Of course, while your estate may have ownership of those photographs, it might not be easy or possible to gain access to the device itself; and manufacturers of devices, on privacy grounds, may be  extremely reluctant to allow third parties, even police, to access devices, as some high profile cases have shown.

This all means that the legal issues involved may not be ones of succession law, but of intellectual property law.

If owned by you, digital assets can have value, which means that they can be bequeathed. It also means that they may have a value for tax purposes, so there is the question of how to arrive at an accurate value for these assets. In the case of photographs, the copyright owned by the estate will need to be considered; and in preparing a will, you may wish to consider how best to control use and exploitation of copyright, if the photos have value.

The ultimate privacy settings

It may seem that the solution is simply to allow others access to your digital accounts.

However, terms and conditions invariably say that usernames and passwords should not be disclosed, for confidentiality reasons.

Many sites will not allow your executors to access your accounts, although there are developments on some social networks to allow you to select a ‘legacy contact’; someone who will be able to make decisions and access some information on your account.

Bequests by text, email and tweet?

In very recent developments, the (English) Law Commission is consulting on a refresher to rules on making (English) wills. One thing that the commission suggests, which should be seriously considered, is the right to apply to the court to implement the wishes of a deceased as contained in an email, text or other electronic communication.

So, it could even perhaps be a simple tweet of ‘@JoeBloggs2 u r 2 get the house #bequest ;)’. The Law Commission recognises that this could open up all sorts of possibilities for disappointed and disgruntled family members and others, creating new opportunities for contention, cost and uncertainty, rather than just having rules based on what current paper-based wills rules seek to avoid.

Of course, looking to modernise succession is a good thing, and the law needs to reflect the ever-growing status of digital assets and rights in our lives.

What should we be doing?

  • The digital nature of assets does not alter the fact that they are, indeed, assets. They form part of your estate on death, and it is still therefore important to leave clear instructions to your executors about what should happen to these assets when you die.
  • Consider the practicalities as well as the legalities of accessing online accounts, whether to obtain financial or economically valuable content and information, or simply for sentimental reasons.
  • Since your digital content may actually be owned by online service providers, and there may be difficulties with your executors accessing your online content, you should back up your digital assets, for example, by storing your photos on a disc or printing out hard copies.

The potential difficulties associated with digital assets is a relatively new phenomenon, meaning that there is no textbook response as to how your digital assets should be dealt with when you die.

Nevertheless, the issue is becoming increasingly common in today’s tech-focused society.

About the author

Alan Eccles is a partner in the private client team at Brodies LLP.

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