Game Over: death in the digital age

There are many practical issues to consider when planning for a client's ‘digital death', as Matthew Duncan explains

In a progressively digital world, solicitors are increasingly being asked to discuss with clients what happens to their digital assets when they die.

If clients don’t raise the subject themselves, then as a profession we have an obligation to do so.

Planning a client’s ‘digital death’ involves practical consideration of many issues from deleting their Facebook, Twitter and Netflix accounts; protecting their email accounts against hackers; bestowing their music library to friends; managing their online financial interests and accounts with Ebay, Paypal, on-line gambling and bingo sites; to crypto currency held in virtual wallets.

Solicitors dealing with probate also need to advise personal representatives when administering an estate that the estate will undoubtedly include digital assets; and these will need to be identified, protected, accessed and valued.

So, how can solicitors proactively assist clients with their digital assets?

REVIEW OF ONLINE FOOTPRINT

The Law Society recommends that solicitors advise their clients to maintain a ‘personal assets log’ which should include a list of their digital assets. This will necessitate the need for a list of logins and passwords for all online accounts.

This is not an easy or quick exercise and many clients won’t have the energy or inclination to prepare such a list; and if they do, it will need to be held securely and constantly kept under review as passwords and accounts change so frequently.

There are commercial products increasingly coming to the market offering secure online storage for this kind of information.

If used and still in existence when the client dies, their chosen executors will once again need to be aware of where the information is stored, and have the ability to access it when the client has died.

CLIENTS MUST UNDERSTAND WHAT HAPPENS TO DIGITAL ASSETS ON DEATH

Clients should be advised to review their online accounts and check the terms and conditions relating to those accounts.

There may be specific terms on which digital assets will be administered on their death, or if there is no activity on an account for a long period of time.

It is worth noting that many internet service providers (ISPs) will permanently destroy digital assets after a specific period of inactivity, unless an executor has made contact or taken steps if they are able, to maintain the account following the client’s death.

Facebook and Google permit nominees to take control over certain aspects of their accounts.

For Facebook, this is a legacy contact; and Google, an inactive account manager.

Clients will need to set up their chosen nominees during their lifetime.

On a practical level, solicitors may suggest to personal representatives that they consider delaying notifying some ISPs on death to prevent an automatic shutdown and deletion of online accounts, which cannot then be retrieved.

An increasingly difficult task can be trying to ascertain whether any intellectual property rights in any digital assets are owned by the deceased account holder on death.

It does come as a shock to many that they only have a licence to use MP3 files downloaded from iTunes during their lifetime and this licence terminates on death.

WHAT ABOUT SOCIAL MEDIA ACCOUNTS?

It has been estimated that there could be 4.9 billion deceased users on Facebook by 2100.

There are a number of services that enable users to plan their online afterlives which allow users to post on social media and communicate with their friends after their death!

For lawyers, their advice to clients should not be about scheduling their status updates after their death, but having a discussion around whether they want their accounts to be memorialized, which essentially means freezing their accounts.

Only verified friends and family can then see the deceased profile on Facebook and it enables friends and family to post comments in remembrance of them.

This should then prevent malicious posts from third parties and causing upset and distress to family members and friends of the deceased.

Clients may wish to give written instructions to executors requesting that they leave a particular message for followers or friends.

However, given the fast pace of life online and of constant updates, these instructions will have to be reviewed regularly.

SHOULD HARD COPIES BE PRODUCED?

If clients are concerned that their accounts may be deleted soon after death due to inactivity, they may want to print off hard copies of photographs and other documents stored digitally; burn them to a CD or download onto a USB stick; and keep them in a safe place for their executors to obtain following their death.

Alternatively, downloaded copies of key documents and information could be kept on the client’s laptop or tablet rather than storing them solely online.

Some ISPs offer access to downloadable content via a link. This can reference everything a client may have uploaded to an account which can provide a useful snapshot for the executors of what an account contains.

DEVICE ACCESS

Many of us own multiple devices, all of which have passwords to unlock them, or thumbprints, or passcodes, face recognition, etc.

Clients may want to consider making a note of the various passwords and login details for certain devices that may contain crucial information.

Again, there are security issues and the need to regularly update this information.

DEALING WITH DIGITAL ASSETS IN A WILL

Solicitors should consider carefully the terms of a client’s will to see whether digital assets have been adequately dealt with under a personal possessions legacy or under the terms of a specific gift.

In the absence of an express reference, digital assets with little or no intellectual property value are likely to form part of residue.

Digital assets such as photographs held online are likely to be of sentimental value only and a client may wish to consider including these as part of a general gift of their personal possessions.

Most wills contain a standard personal chattels clause which references the statutory definition in section 55(1)(x) of the Administration of Estates Act 1925.

It is worth noting that wills executed before 1 October 2014 which incorporate section 55(1) do not include digital assets.

The statutory definition was amended by the Inheritance and Trustees Powers Act 2014 so that post 1 October 2014, personal chattels include all tangible movable property apart from business assets, investments and money.

However, this modernised definition will not include digital assets which, by their nature, are intangible.

Solicitors drafting wills to include digital assets should therefore amend personal chattels legacies to include intangible assets held digitally.

It is important to exclude valuable intellectual property to ensure this is not inadvertently included as the testator may prefer to cover those assets within a separate gift.

As the chattels clause excludes money, securities and investments, this would mean investments such as crypto currency and any balances held in Paypal or eBay accounts will need to be dealt with separately or as part of the residuary estate clauses in a will.

Crypto currency accounts such as Bitcoin can be difficult to deal with on death as the digital wallets will be password protected.

They can also require a certain level of knowledge and skill to deal with them.

Clients may wish to include specific legacies in their wills to deal with these holdings; and should consider whether their executors have the necessary expertise to administer the crypto currency accounts.

Clients may consider appointing separate professional executors to deal with assets containing crypto currencies or other complicated digital assets.

If there is no will, the deceased’s digital assets will not fall within the statutory definition of personal chattels passing to the surviving spouse under the intestacy rules and, instead, will form part of the residuary estate.

LETTER OF WISHES

Letters of wishes have traditionally dealt with issues such as funeral wishes and gifts of personal chattels.

Any wills now being prepared for clients who have digital assets, letters of wishes might need to be very detailed and contain specific instructions on how to administer those digital assets.

The letters of wishes will also need to be regular reviewed and updated.

I think it’s fair to say that all of us underestimate how much we store digitally.

As solicitors, we need to discuss with our clients the consequences of what happens to those digital assets when they are no longer alive; to prevent distress, disputes, costs and complications for family members and the executors.

Matthew Duncan is a consultant at Druces druces.com