Providing guidance on your digital assets so that their treatment on death is in line with your wishes.
Digital assets are the possessions you hold on a digital device, such as a laptop or mobile phone.They can have financial value such as a Paypal account or cryptocurrencies or, instead, have sentimental value such as photographs or emails. You may also access tangible assets via digital online accounts such as banking apps or pension platforms.
Different rules will apply to the different forms of digital assets:
You may wrongly assume that specific gifts of such items in your will or accompanying Letter of Wishes will mean that your chosen beneficiaries will inherit the information contained on such devices. But, the legal definition applying to such gifts will only include the physical tangible asset. Digital assets like photographs and emails etc are intangible and therefore a beneficiary will not inherit the information stored on the device. Instead, if a beneficiary is also to inherit the information stored on a device, you must specifically include this gift within your will or Letter of Wishes.
As explained above, digital assets such as photographs stored on a device are not automatically inherited by your beneficiaries following a gift of a digital device. Instead, a specific gift of such assets must be made in a will or Letter of Wishes.
It is also important to note that email accounts may include valuable information or contain sensitive or confidential messages - some with potential to cause distress to your beneficiaries. You may therefore wish to leave your Executors further instructions to delete emails or entire accounts prior to passing on the remainder of the digital asset.
These accounts may only be of sentimental value but it is important to consider what you would like to happen to these accounts on death. Some services allow you to specify a contact who may have control of your account in the event of your death whilst others allow an Executor to request that the account is removed.
Facebook or Instagram allow an account to be ‘memorialized’ so that messages can continue to be posted to the account. In some instances, a social media profile is automatically deleted after a specified period of inactivity so it is wise to check an account’s terms of service when considering how such digital assets should be dealt with.
As above, you should check terms of service to confirm how Executors can encash digital assets with monetary value. It is particularly important with these types of assets that Executors can easily find details of accounts as, with any asset with a monetary value, they will need to be accounted for in distributions to Beneficiaries. Their value may also need to be reported to HM Revenue & Customs when obtaining a Grant of Probate to your estate.
Often online accounts are used under the terms of a licence agreement as agreed via the provider’s terms and conditions. For example, when ‘purchasing’ music we are actually buying a right to listen to the music under licence. Such a licence is not usually transferable and therefore it is necessary to check the terms of such licence agreements to see whether it is even possible to transfer these digital assets to your chosen beneficiaries on death.
If you have your own business, the ability for your business to continue functioning following your death may be a concern. You should therefore consider what digital assets will need to be transferred to business partners to allow business continuity. Access to online accounts, software licence keys or client lists etc should be clearly identified within your will or Letter of Wishes to confirm who should inherit these digital assets within your business.
Crucially, if you do not gift digital assets within your will, they will fall into the residue of your estate, which may not be what you intend. There is also a strong possibility that, without specific mention, such assets will be overlooked or lost. You therefore need to take the time to document these assets carefully and decide how they will be distributed.
With all of the above forms of digital assets, your Executors will need to be able to access such information in order to follow your wishes. You may feel that the simplest solution would be to share your log in information with friends and family. However, this risks your confidentiality during your lifetime and will likely breach the agreements you have signed up to when agreeing to a digital asset provider’s terms of service. Nevertheless, it is clear that, without guidance, it will be difficult for your Executors to trace all your digital assets. Therefore we recommend that you store an inventory of digital assets with details of how these are to be accessed with your will and regularly review that inventory.
We can provide guidance on how to deal with your digital assets and ensure that your will meets your wishes in the treatment of such assets following death. We can also provide guidance on how to complete an inventory of digital assets to assist your chosen Executors in dealing with the wishes contained within your will.
We are lawyers you can count on to deliver. If you’d like to find out more about our services and whether we can help you, click the button below and get in touch.
Our team will be responsive and accessible – a valued partner ready to assist you every step of the way.Contact us