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Going through a divorce? Don’t forget to update your Will!
Stephanie Mooney
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.
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:
- Don’t assume that friends and family know what digital assets you have. Make a list of all your digital assets. This can be online and referenced in your Will or on paper and kept with your Will.
- Decide upon a safe place to store the details of your digital assets that can be accessed by your executor. 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.
- 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.
Further information
If you would like any further information or advice about the topic discussed in this blog, please contact Diva Shah or our Private Client team.
about the author
Diva Shah acts for various clients including high net worth individuals, entrepreneurs, executors, trustees and individuals who lack mental capacity on a broad range of matters including, lifetime succession and estate planning; wills and Lasting Powers of Attorney; probate (the administration of estates); creation of and administration of trusts;
succession planning for companies (well established companies and start-ups); and applications to the Court of Protection preparing statutory wills and gift applications for those lacking capacity.
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