In general, we plan for our loved ones or charities close to our hearts to eventually inherit our houses or apartments, jewellery, or other family heirlooms. However, with life increasingly being lived online, we may be overlooking an increasingly important kind of property: digital assets.
There are multiple definitions of what the term “digital asset” means. In general terms, a digital asset is anything that exists in a format that can be understood by a computer, is uniquely identifiable, and has or provides value.
Types of Digital Asset
Digital assets range from photos, documents, videos, audio books, music, word files, websites, cryptocurrencies, online bank accounts and, whilst some of these items would not constitute “property” for the purposes of the estate, the computer hardware on which they are stored is.
“What do you have?”
If an estate plan doesn’t account for digital assets properly, personal representatives and attorneys may not be aware of, or be able to gain access, to them. The consequences of this are that access to family photos and videos, social media/cloud accounts, crypto assets and other online storage accounts may be lost or, in some cases, never discovered, with both financial and sentimental loss arising.
In short, digital assets need to be understood and accounted for in the preparation and execution of estate plans to ensure that our digital lives can pass to future generations.
Cloud Accounts and Social Media
Additional obstacles for families, personal representatives and attorneys exist in the form of the contracts between the deceased and service providers of cloud accounts and social media sites. The authority to access the service provider’s equipment or App is given under the relevant contract between the deceased user and the provider and it will be down to the terms and conditions of each service provider as to whether anyone else could have been authorised to access the provider’s services during the lifetime of the deceased.
It is often the case that the contract terminates upon the death of the individual with no recourse to the digital material lost. In the event the rights arising under a cloud contract survive the passing of the account holder, the user rights will survive for their estate’s benefit.
“But I’ve got the passwords!”
However, this is not the end of the story. Even if personal representatives and attorneys have passwords and are aware of the various accounts in existence, they may be prevented from accessing them due to provisions in the terms and conditions or through local legislation (e.g., in England and Wales, the Computer Misuse Act 1990). The existence and access to private keys for wallets holding cryptoassets is another area where problems arise, in part due to a lack of knowledge as to their existence, but also due to uncertainty as to the identity of the custodian or location of the key.
Some of these obstacles can be avoided by directly addressing digital property in your estate plan.
Making an Inventory (or two)
Advisers and clients alike should seek to explore in detail the devices, cloud accounts and crypto assets that the client holds. An inventory should be made of these, and this should be split into two separate documents (one which deals with the digital assets themselves and another which deals with passwords that is kept entirely separate and stored safely). Both documents should be regularly updated.
When considering putting in place a will, provisions regarding digital assets should be included. Whilst there is no need usually to appoint a separate digital executor, it may be necessary to appoint an expert to advise on the administration of digital property rights and interests. Broadly speaking reference to digital records stored on the client’s devices should be made within a will (although specific language should be inserted that deals with legacies and crypto assets) with appropriate professional advice taken on the specific details for each individual.
Care should be taken to ensure that your digital assets pass to future generations. That starts with a conversation and requires careful estate planning to ensure nothing is missed and inventories are in place. It is advisable to check the terms and conditions of cloud accounts to see whether users can be authorised during a client’s lifetime. Understanding what digital assets are held and where they will be is essential for estate planning moving forward to avoid lengthy and often fruitless attempts to recover items of both economic and sentimental value.