Death in the Digital Age

As much as we may try to fight it, we’re in an increasingly digital age. Social media now extends into every aspect of our lives, from those notorious repetitive baby pictures to ‘in memory of’ pages to remember loved ones. We collect and share moments of our lives in the digital world.

A recent survey of UK consumers found that we value our digital assets at approximately £25 billion and this will only increase as more of our lives are captured and stored in digital form. Our digital footprint exists from cradle to grave; is it time to start thinking of the beyond, and time to consider our digital legacy?

There’s no legislative definition of what constitutes a “digital asset” in the United Kingdom. However, it’s understood to mean any information that exists in digital form; either online or on a storage device. Our personal digital assets include blogs, digital photos, online bank accounts, Bitcoins, e-books, media players such as iTunes, online gaming accounts such as PlayStation, and social media profiles.

Think of your journey into work today; the messages you sent, the photos you posted online to Facebook/Instagram, and the music you danced along with – all digital assets held in cyberspace. Now think, would anyone be able to access any of your digital content after your death? The most likely answer is no.

In the same way that you would make provisions for tangible assets such as your house and expensive pieces of jewellery when you die, making provisions for your digital assets is a modern day issue. Some of your assets may have financial value, such as PayPal/bank accounts and bitcoins, and others may have sentimental value, such as photos or emails, and you may wish to pass these down to loved ones on your death. You may also want to pass on the passwords for any devices you own such the as the code to unlock your iPad.

Social media profiles such as Facebook, Instagram or Twitter can be either frozen and turned into an online memorial for friends and family, or taken offline. For instance, Facebook have a “Legacy Contract” feature so you can nominate someone to have access to your account upon death allowing friends and loved ones to leave messages and view photos.

Some assets are not owned by the individual and are merely licences to use a website’s services. These, in general, are specific to an individual, are not transferable and will terminate on death. An example is an individual’s iTunes account, which is not transferable upon death and the account is not ‘owned’ by the deceased. In 2012, it was widely reported that Bruce Willis was going to great lengths to make sure his iTunes digital music collection could be passed on to his daughters. The story was later denied but it still raised important questions about how people's digital assets fit into their estate.

In April 2014, the Law Society started urging individuals to leave instructions for what was to be done with their digital assets when they die. They detailed that having a list of online assets would make it easier for family members to piece together the deceased’s digital legacy and adhere to their wishes. STEP has also provided guidance dealing with digital assets. However, a YouGov poll in 2016 found that 52% said no one would be able to access their digital accounts if they died because they had not left any arrangements about what should happen.

This is a developing area of law, and there is no definitive answer as to how your digital assets will be dealt with on your death, but our 5 top tips for protecting your digital legacy are:

1. Don’t assume that friends and family know what digital assets you have. Make a list of all your digital assets so that, on your death, the person dealing with your estate knows what they are and where to find them. This can be online and referenced in your Will or on paper and kept with your Will;
2. Decide upon a safe place to store the details of your digital assets and make sure whoever is dealing with your assets is able to access them. There is, of course, the issue of how to deal with passwords. You could quite easily leave the username, password and other login details to whomever you wish to benefit or with your Will. However, since passwords change all the time, you could keep all of your passwords in a password manager or database, so you only need to pass on one master password, and you can keep all of your other passwords updated in the database;
3. Appoint someone you trust to deal with these assets on your death and make sure they know what you want them to do, for example which assets they should keep and which they should destroy;
4. If the service provider provides an option to memorialise your account after death, ensure that your executors know your wishes and any particular message that you would like to leave to friends or followers; and
5. Update your Will (or if you don’t have a Will then make one) to include your digital assets.

Further information

For more information on how to make a new Will or amend a current Will please contact a member of our Private Client team.