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Digital life after death
Private client practitioners, with their Wills Act 1837 and the Administration of Estates Act 1925, have never been viewed as members of the profession with cutting edge problems.
But no longer,
as we are now dealing with the
relatively new issue of the
digital estate.
Billions of people worldwide use the internet and a remarkable 70 per cent of them do so every day. Those of us who are over 40 will remember when we didn’t know anyone who used it. Many confidently predicted that it would never take off. But, as we now know, the only constant in technology is change. The advent of smart technologies, phones, tablets and online businesses has all contributed phenomenal changes to how people live
their lives and, by implication,
the nature of their estate at
their death.
The addiction to social media presents an executor with new and difficult problems. They must deal with Facebook and Twitter on behalf of the deceased. There may not be an immediate financial risk, but there is huge sentimental value to the family. As photo albums and diaries are replaced by digital photo sharing and blogs, the digital footprint will become the most important record of a life.
All digital activities are password protected, causing access and preservation issues, but conversely this raises both privacy and ownership issues too. Inactivity is not an option as some social media accounts will be deactivated due to inactivity, whereas others will continue indefinitely after death. This opens the door to identity fraud with a deceased person’s social media accounts a potentially easy target for hackers. Social media is a very immediate activity. Often information is shared without caution. An executor still has a clear duty to prevent loss.
Other digital assets can have
a tangible value, such as websites and domain names. The intellectual property needs protecting and this is a serious issue for the will draftsman. Even a gaming avatar can acquire value through online successes. Also, those producing original material for sites such as YouTube, can generate significant advertising revenues.
Conversely, where people see a valuable asset, there may be none; for example, thousands of pounds can be spent on downloads such as music or films, but commonly you have only acquired a licence which is revoked by death, and therefore there is no legacy. Even while we ponder this problem, the growth of subscription access services may render the ownership of a download irrelevant.
How this is managed is a new opportunity for the profession, but also for third parties, to add value for our clients, and digital planning will become increasingly necessary. The provision of legal services has never been more competitive and any failure in the profession to act will create a vacuum to be filled by the commercially astute. In this technological age, the acquisition, management and use of data is the key to the future of marketing and the growth of the profession. SJ
Les Murray is a solicitor at Gordon Brown Law Firm
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