Going through a divorce? Don’t forget to update your Will!
Our digital footprint exists from cradle to grave; what happens to your digital assets after your death and what steps should you take to safeguard against misdirection of assets, or loss of sentimentally or financially valuable materials?
The short answer is there is no right answer and it’s legally grey.
Apple has recently announced the introduction of a new digital legacy feature which allows a nominated person to access someone’s Apple account in the event of their death for the first time. It remains to be seen if Apple will lead the way, but there is no doubt that some consistency is needed.
There’s no definition of what constitutes a “digital asset” and in reality it is actually means “information in digital form” rather than assets such as bank accounts and property. 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. The law recognises that a digital asset can be property and that a digital asset can be “owned”. However, it does not recognise the possibility that a digital asset can be “possessed” because the concept of “possession” is currently limited to physical things. This has consequences for how digital assets are transferred, secured and protected under the law.
There is no consistency between how different service providers and social media giants deal with sentimental items. Each platform has a different approach to dealing with accounts of deceased people. Social media platforms such as Facebook, Instagram or Twitter can often either be frozen and turned into an online memorial for friends and family, or taken offline. Some assets are not owned by the individual and are merely licences to use a website’s services and so may terminate on death. Email and cloud storage services often view assets as information. They do not accept that personal representative have any relevant legal rights and rely on their terms and conditions, which subsequently refuses access without a court order.
Tech giants such as Apple have been lobbied for years to formalise the access of emails, pictures and other content following the death of someone. Until now, Apple has required the Grant of Probate and a court order to access the deceased’s account. Whilst the Grant of Probate is achievable and required to administer a deceased’s estate in any event, a court order is far more onerous, time consuming and expensive.
The new feature allows a trusted person access to some but not all elements of a person’s Apple accounts. Payment information, subscriptions, licensed media and Keychain password data will not be included. Importantly, you will still need any passcode to access the device. The new feature is not the same as gaining access to a passcode-locked device, which Apple is unable to provide as the company does not possess a copy of the passcode or the ability to override it. The new protocol will allow access on production of the deceased’s death certificate and an access key.
Cryptocurrency is also dealt with slightly differently; they blur the distinction between information and assets, because the asset can only be accessed through the information of the pass key. Leaving cryptocurrency to a beneficiary in your will is a helpful indication of your wishes, but there is no custodian the personal representative can produce a Grant to in order to access the underlying assets. If you have bitcoin, your personal representative will only be able to access it with a pass key. It is therefore vital that the pass key is made available to them, either in a sealed letter to be opened on your death, or during your lifetime.
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. In addition to ensuring your Will includes your digital assets, top tips are:
Since writing the above, the government has announced plans to modernise and strengthen the Lasting Power of Attorney (“LPA”) process, by which a person can appoint attorneys to manage their affairs in the event that they lose capacity, following last year’s consultation on modernising the system.
In summary, the major reforms will be:
A Lasting Power of Attorney (“LPA”) is a legal document which allows you to choose who should help you make decisions or make decisions on your behalf when you lose mental capacity and are no longer able to do so yourself. The person making the LPA is called the ‘donor’ and the person or persons given authority under the LPA are called ‘attorneys’. There are two types of LPA: one for ‘Financial Decisions’, for example paying bills or dealing with properties; and one for ‘Health and Care Decisions’ which can cover decisions from what type of care you receive to whether life sustaining treatment is given or not.
The Government has for some time promised to introduce a register requiring overseas entities holding UK property to identify its beneficial owners, in its effort to increase transparency in UK property ownership and reduce the attraction of the UK’s property market to money launderers. Indeed, we last blogged about the potential overseas entities register in May 2019. With UK-based entities subject to strict information-sharing requirements since 2016 (in the form of the register of People with Significant Control or “PSC Register”), many have been calling for an equivalent overseas entities register to be implemented to provide a way of tracking overseas owners who ultimately own and control UK land.
Laura Harper was delighted to be invited to talk to the editor of ‘Wealthbriefing’ recently about the important topic of philanthropic giving by HNW individuals and families.
Apple officially released its ‘Digital Legacy’ feature on 13 December 2021. This permits individuals who have been nominated by the deceased to access the deceased’s accounts and data after their death. Diva Shah examines the impact of this new feature and its implications for Private Client practitioners in matters of estate planning where digital assets are involved.
The UK government introduced new legislation that will require those working in care homes to be double vaccinated against coronavirus. This has been implemented through the Health and Social Care Act 2008 (Regulated Activities) (Amendment) that came into effect on the 11th November 2021. This regulation is applied to England only.
While IHT escaped major changes in the Autumn Budget the Chancellor could be tempted to tweak the framework for IHT in future, writes James Ward. But what playbook would he use?
As non-UK tax residents, the couple will be subject to special rules for calculating the capital gains tax (“CGT”) due in relation to either the sale or transfer of their UK property.
Our well regarded French contact* has warned us that a new law just passed in France is going to cause problems for Anglo / French succession planning. Under the laws of England and Wales, all individuals have testamentary freedom and can leave their estate to whomever they choose under the terms of their will.
Trans adults with full decision-making capacity have the freedom to secure hormonal and surgical interventions to align their bodies with the physical attributes typical of the gender with which they identify (a process known as “transitioning”). However, for those who lack capacity, the involvement of others who are responsible for making decisions on their behalf is required, and the position can be complex as a result. This blog explores the approach to making decisions relating to transitioning on behalf of protected trans people, applying the best interests test and guidance from case law, and discussing the practicalities for decision-makers.
With the price of crypto assets generally making a good recovery from the Covid-19 related decline of 2019 contrasted with the very recent volatility following issues with the adoption of the cryptocurrency as legal tender in El Salvador, investors in cryptocurrencies might be considering realising some of their gains to try to help minimise any further instability.
In recent years there have been calls for a change in the law to protect vulnerable adults from falling victim to what has become known as “predatory marriage”. This is due to a rise in cases where fraudsters have married vulnerable and often elderly individuals, without the knowledge of their loved ones.
The Office of the Public Guardian (OPG) and the Ministry of Justice are working together to modernise the process of making and registering Lasting Powers of Attorney (LPAs). The consultation is open to the public and will remain open until 13 October 2021.
Good news – The “secret” specialist HMRC unit set up in 2019 to examine the tax avoidance risks has been wound up after finding no evidence of correlation between the use of FICs and non-compliant behaviour.
Deputies are typically appointed because individuals cannot make decisions for themselves due to illness, like Alzheimers or dementia, old age or perhaps as a result of a catastrophic personal injury or medical negligence.
There are several reasons why someone may need the assistance of a financial deputy, stemming from incapacity due to an accident or a consequence of old age. There is however a darker side to this type of work that Court of Protection lawyers are seeing more and more of. This relates to those who have suffered some form of financial abuse and/or undue influence.
After a spinal injury the long-term impact on your life and that of your families can be significant. You may need a care package, a new home or adaptations to their existing accommodation, therapies and specialised equipment.
The pandemic has changed the world – there is no doubt we are all “online” far more now than before. Social media now extends into every aspect of our lives, from those notorious repetitive baby pictures to those ‘should never have been posted university photos‘. We collect and share moments of our lives in the digital world.
In the latest edition of the Financial Times Money Q&A, Jemma Garside, senior associate in our private client team answers a question: "Should I set up a joint lasting power of attorney for my mother?"
Subject to any restrictions or conditions in the Lasting Power of Attorney (“LPA”), a property and affairs attorney can make gifts on the donor’s behalf to the donor’s friends, family members or acquaintances on customary occasions.
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