Post death arrangements for digital assets

Digital assets play an increasingly important role in our daily lives – whether through social networking, reading eBooks, using cloud storage for emails, music and photographs or making transfers using our online bank accounts.  Many of us cannot imagine a life before the internet. This proliferation of digital assets has not as yet been matched by processes to deal with those assets when we die.

In some cases, the answers are clear. Banks, for example, have processes which align with the probate system to ensure that the right people are afforded access at the right time.

The answer is less obvious with many other forms of digital asset, such as social networking accounts, email accounts and online storage. The question is often legally complex because of the terms and conditions agreed to when such accounts are established and privacy issues surrounding what may be confidential correspondence and information. This can cause particular heartache at an already difficult time if loved ones find they hit a brick wall in trying to access assets of the deceased to which they feel they have a moral, if not a legal, right.

Service providers are starting to wake up to the issue and are increasingly taking steps to put in place procedures for users to notify them of their wishes in the event of their death. The Law Society and the Society of Trust and Estate Practitioners (STEP) are looking at this issue with a view to producing guidance for their members later this year.

We suggest taking steps to improve the situation, including:

• preparing a digital assets log (which executors should be aware of but should not see) and keeping this under frequent review. It is important to note that it may breach the terms and conditions of service providers to record passwords within the log
• reviewing the terms and conditions of any accounts to assess whether there are steps which can be taken during the user's lifetime (e.g. if the nomination of an inactive account manager is permitted by the service provider)
• leaving directions for executors on steps to be taken in respect of social networking accounts. The options may include deletion (with potential loss of photographs and messages) or arranging for the account to continue as a memorial
• backing-up digitally stored items onto hard storage devices which can be left by Will to the chosen beneficiary
• taking care to ensure that any vital documentation is not just stored online as it may be difficult to access or, indeed, may be inaccessible after death
• ensuring that wishes have been clearly and effectively recorded in a Will and, if appropriate, a letter of wishes.

It is unlikely that there will be a one size fits all approach even once the guidance is available. Each service provider is likely to continue to have its own set of requirements and this is something clients will need to navigate when making post-death arrangements.

For further information or advice, please contact:
Fiona Smith, partner
T: +44 207 863 8570
E: [email protected]