Leaving traditional assets to family in a will is clear enough, but what about the music, photos, social media and apps you own online?

It’s normal for somebody to consider the more traditional aspects of assets when creating a will, but what about the latest generation of assets – your digital assets, such as purchased music, games, apps and money making social media accounts or website?

When you sign up for an online account of any kind, post a photo on a social media account or download a music album you probably don’t give any consideration to the fact that you are creating digital assets. And, understandably it’s likely that you don’t give any thought to how they will be dealt with after your death.

The world is becoming increasingly digital. There are around 4.66 billion active internet users worldwide. That’s 59.5% of the global population. 4.2 billion of us are active social media users. We’ve signed up for an account on Facebook, Instagram, Twitter or another platform agreeing to the terms and conditions as we did so. You may even have read the user agreement in full and requested that it be emailed to you. Likely the last thing on your mind as you requested access to the software is what would happen to the content you created when you are no longer here.

What is a digital asset?

In the last few decades, physical items such as photo albums, bank statements, record collections and letters have been increasingly replaced by their digital counterparts. So instead of tangible items, we have emails, online banking, audio streaming and cloud photo storage.

digital music assetsThese can be considered your digital assets although the examples above are only a small representation of the different types. Now you might expect that you would be able to pass these digital assets on to your loved ones in your Will. After all, you’d be able to do this with the physical versions. However, this is where things differ when it comes to digital assets.

From a legal viewpoint, things are a bit interesting! English law agrees that the copyright relating to emails, photographs and other content belongs to the creator. So the individual, deceased or otherwise, who took the photo or typed the words is the owner. However, it has no specific definition of digital assets.

The difficulties of digital assets in relation to English Law is something the Law Commission are well aware of. They are currently looking at issues around crypto and digital assets and how current legislation can be reformed to accommodate possession of ‘intangible’ assets. But it’s a slow process. Their recommendations are not due until 2022 and will still require implementation by the government.

Furthermore, accommodation in English law would only be a starting point. Digital assets are likely to be a multi-jurisdiction issue.  For example, the platform may be owned by a company registered in one country with servers and data in another while the actual user resides in a third location. Each location is subject to the laws of its own country. Additionally, local laws may apply as they do in individual states in the USA.

Even public opinion itself is divided on what should happen to online accounts and devices after death. Some favour wholesale deletion while others see their online activity as a legacy that can be passed on or used as a memorial.

The value of a digital legacy

The Executor of a Will is responsible for dividing up the possessions of an individual according to their final wishes. When it comes to looking at a digital legacy their starting point is clear. Firstly, they need to identify the assets associated with the individual’s digital footprint. Then they need to consider which assets have a monetary value and which, while of sentimental and emotional value, do not.

what is a digital legacy?This will be easier in some cases than in others. Investment accounts, bank accounts and cryptocurrencies are clearly among those which have a monetary value. But the content of websites, online profiles and social media accounts shouldn’t be dismissed as being necessarily worthless.

The key lies in who these belong to and how they have been used. Within the realm of the online, the use of platforms are many and varied. This means that the value of social media profiles, newsletters, e-courses, e-books, websites, blogs and online content can vary considerably. This may prove to be a challenge for valuation in order for Probate to be granted.

The most obvious digital activity with a monetary value might be the various accounts associated with a business. So, for example, a shop might have a website and various social media accounts. The website could include an online shop, a blog telling customers about new products and various videos demonstrating how to make best use of their wares. These things make up part of the value of the business. In order for the business to remain viable they will need to continue to be updated. Without the relevant passwords, user names and access codes business continuity will be interrupted and this may damage the value of the business. This raises questions of transferability to either business partners or a new owner. It’s a good reason for companies to ensure that access to systems is not dependent on a single individual!

Another area where online profiles have a value is for social media influencers. This group make income by sharing content about their daily lives with their followers. Their posts are usually sponsored or have affiliate links.

How much value their accounts would retain is questionable. It may depend on how much they have been able to diversify their content. Likely those who had created online courses, books or products as part of their offering would be in the best position to continue to provide an income stream to their heirs. In many ways they would not be in a dissimilar position to the sale business referred to above.

Another variation of the new opportunities for an online career are gamers streaming their play to subscribers. Income is made from membership, sponsorship or adverts.

Licensing and ownership

The next complication for the executor is whether the deceased had ownership of their online assets or was simply licensing them. Leaving a book or music collection to a friend who shares your interests would not be an unusual request in a Will. Assuming that the items in questions existed in physical form. If they are digital then some investigation will be required.

The key issue is around what the contract, user agreement or terms and conditions stated and what provisions they made for such contingencies.  For many popular services what you are paying for is a right to access rather than ownership which means you won’t be able to pass it on.

There is also the matter of access to the content. One can see the reluctance of a platform or service providers to release personal information and also the frustration of relatives who simply want to keep family photographs and emails. Generally, data protection legislation, which is intended to keep these details safe, only applies to living individuals. If you have the passwords or access codes, the idea of logging in to access the content would be tempting. But even if you are authorised as Executor, it would not be advisable to do. This action may cause you to fall foul of the Computer Misuse Act 1990.

Deleting online accounts

Closure of accounts can also be troublesome. There are good reasons for removing accounts. It can be upsetting to receive reminders from the platform about the deceased for something like a birthday. But fraud is also an issue.

social media account ownership probateClosing down an eBay or Amazon account may seem an irrelevancy but left open the account could potentially be used without permission. Many people have card or other payment details stored on their account.

Privacy is also a concern. You may have digital content such as personal emails that you would prefer to be destroyed in event of your death rather than floating around cyberspace indefinitely and causing potential embarrassment for family.

However, social media platforms are often difficult to contact and information about closing accounts, while available, is likely to be buried within their site. There are some exceptions. Facebook allows for the appointment of a ‘legacy contact’ and for you to choose whether you want your account to be deleted or memorialised after death. Twitter does not offer memorialisation but will allow for an account to be deleted if authorised by the Executor or an immediate family member.   Google has introduced an Inactive account manager tool.

Planning your digital legacy

Digital assets may be held in varying parts of the world and therefore subject to individual platform agreements and local data protection laws. The asset value may vary considerably.  Content may not actually be the property of the deceased and where it is, there could be access problems. Consequently, estate planning for your digital assets is something you should be thinking about today. Action now will make things much easier for your loved ones, and your Executor in the future. Here are a few steps you can take now.

Make an appointment with your solicitor

There’s no doubt that the best person to discuss your digital legacy with is a legal professional. At Foys Solicitors we’ve supported many people through the process of will preparation and estate planning and each outcome has been as unique as the person themselves. While banks and insurance companies are beginning to offer tools to support digital estate planning, these are no replacement for experience. An experienced professional can tailor the right approach for you and your dependents.

List your digital assets

Start your planning by making a list. Your assets can’t be acted on if your Executor doesn’t know they exist. While they can make an inventory of a property for valuation purposes, what you hold online is less obvious than physical possessions. You might be surprised by the number of accounts that your email address is linked to.

The Digital Legacy Association has some useful resources to assist with this inventory. You should ensure that you include the following:

  • Email accounts
  • Social media accounts
  • Online media  – both storage and streaming or download services
  • Websites and blogs
  • Online shopping accounts
  • Financial sites including bank and investment accounts
  • Accounts related to your business

If accounts are shared, such as email address or bank account note this.

Review your list

Consider the assets on the list and how you would like them to be dealt with. If you have particular actions that you would like taken for an asset then check the terms and conditions for the platform or service to see if it will be possible.

Decide whether you want social media accounts to deleted and consider removing any online accounts that you no longer use or need. For local authority services or others like HMRC, the ‘Tell Us Once’ service allows most government organisations to be informed of a death without the need to contact them individually.

Keep the information up to date

Review your digital assets list regularly.  Add new accounts or assets to the list as you open them and ensure that the actions you wish to be taken for each remain current.

Speak to Foys about planning your digital legacy

Our team of legal experts are here to help you ensure that wishes are carried out when you are no longer here. We’re able to work with you on all aspects of estate planning from Will to Trust to Lasting Power of Attorney.

We offer a free initial consultation so that we can assess your needs and proceed in a way that will support your needs and provide the best solution for you and your family.

For a free initial consultation or more information on planning your digital legacy, give us a call on 01909 500511. You can also email us at enquiries@foys.co.uk or complete our Contact Form.