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The Challenges of dealing with online and digital assets in succession planning

More and more parts of our lives are being conducted online. 20, or even just 10, years ago it would have been difficult to predict how much all of us, young and old, would become reliant upon technology.  Traditionally deceased’s estates have been made up of the usual bank and building society accounts, shareholdings, properties, personal belongings etc but in this modern age there are so many more aspects to our assets and yet still relatively few wills deal with this.  The question is how, or in the case of some assets can, they are dealt with in estate planning?

Digital assets can be broadly broken into 4 main groups:

  1. Those with a financial value such as
    1. Online bank accounts
    1. Online share dealing accounts
    1. Online gambling accounts
    1. Paypal
    1. Shopping accounts
    1. Etsy and online businesses
    1. Software licences
    1. Subscriptions (magazines, gyms, Amazon, Netflix etc)
    1. Domain names and websites
    1. Cryptocurrencies (eg Bitcoin)
  2. Those with an intellectual property value such as
    1. Unfinished manuscripts
    1. Personal music files
  3. Those with a sentimental value such as
    1. Digital photos and videos
    1. Letters and personal documents stored online
    1. Personal emails
    1. Digital music collections
  4. Those with a social value such as
    1. Social media accounts (Facebook/Twitter/Instagram/Snapchat/TikTok etc)
    1. Email accounts

This is an ever growing and ever evolving list and it is hard to foresee what may be next.  Who amongst us repurchased their music collection on CD to replace a vinyl collection thinking that would be the only time they would have to change format?  And now to be faced with the prospect of doing all again for a digital format collection.

These rapidly expanding categories of digital assets brings with it a multitude of issues, incorporating not on succession law but also intellectual property, contract law and privacy law and is multijurisdictional.  Whether or not an item has any kind of value on the death of the owner is largely dependant on the contract or service agreement with the provider and which jurisdiction governs them which may not always be clear.

Some of the items listed above may have agreements that cease on the death of the owner such as software licences, subscriptions and digital music accounts and so are not capable of being left under a will.

Leaving such assets dormant on the death of the owner can lead to issues of identity theft and open for hackers and spammers to abuse.  This brings with it not only the issues of dealing with the items in the wake of such identity theft but is also distressing for grieving family members.

There will be items that leave no physical footprint, no paper trail and no evidence of their existence outside of a virtual presence and without information left by the deceased that they have these accounts it may be difficult for the executors to deal fully with their administrative duties. 

We are all encouraged not to write down our login credentials or other access information for our accounts to protect our online security but in which case how are personal representatives to know what exists when dealing with estates?

One option could be the use of one of the number of ‘Digital Inheritance Vaults’ found online that allows users to store information relating to their cyber presence for their nominated representative to access on their demise.

We must also consider the necessity of keeping this information up to date when new accounts are opened and following any updates of passwords we are required to do.

Another consideration maybe to appoint specialist ‘digital executors’ who may be separate from the primary executors.  These should be someone who is ‘tech savvy’ and has some knowledge or expertise to trace and gain access to any online accounts.

One thing is clear, that this is a very unclear area which concerns many legal and jurisdictional concerns and needs careful consideration when dealing with estate and succession planning.