Needle meets digital haystack

The discussion around so called digital legacies has gathered considerable pace over the past few years. It reflects the reality of the modern world, where many people now have a significant online existence, whether this is purely social or for the storage of data or management of assets.

For the private client practitioner, the practical difficulties in establishing the assets owned by a deceased individual has always been a problem, even in the pre-digital era. The fear now is that the online world presents a further gloom into which the personal representative (PR) must rummage, and where serious thought must be given to:

• What sort of assets or data may be shielded from immediate view;

• How best to impart information to personal representatives; and

• How information may ultimately be accessed after death.

Where do you look?

One of the most obvious practical difficulties faced by a PR is in trying to identify online financial accounts operated by the deceased, particularly where paperless statements have been selected and there is limited physical evidence of their existence. There is also the question of locating the whereabouts of precious photographs or film stored digitally. Historical data, projects and family trees may also exist solely online. For some, how sensitive social media is dealt with may also be an issue.

Caution should be exercised when leaving passwords or PIN details to PRs before death. Not only does this represent a possible security risk, but use of those details by PRs or family members after death may breach the Computer Misuse Act 1990.

Generally, it is not advised that PRs should attempt to access or manage the accounts of a deceased party, despite the tempting ability to do so with online access. Rather, it remains the case that online asset holders should be advised of the death in the usual way, and their requirements then followed to facilitate access.

Gift, terminate or 'memorialise'?

It has long been seen as good practice for will draftsman to ask their clients to provide a list of their assets - not least to provide a concise list or aide memoire for their executors. For the reasons discussed above, it is now suggested that details of online accounts and other relevant digital assets or media should be added to this list.

As well as acting as a useful guide to the whereabouts of any such accounts, the list may also provide instructions for executors. For example, how should digital media be dispersed, once accessed? Should a Facebook account simply be closed or 'memoralised'?

There are now specifically tailored websites that offer a one-stop solution to some of these issues. For example, asset lists may be created and amended, passwords and pins detailed, letters of wishes produced and guidance provided to PRs.

Although at first sight a good idea, some caution is advised. Any single repository of information is only as good as what is put in and PRs would always be advised to carry out separate searches of paperwork to ensure that nothing has been missed.

In addition, and in light of the recent high-profile hacking cases, it is clear that no online facility is truly secure. It may be a concern to some that so much personal and financial information stored in one place is high risk.

Some of these sites offer 'partner' legal services - typically will drafting. It would be unfair to comment on the quality or effectiveness of these services, but as a general rule, it is usually preferable where possible, for will instructions to be taken face to face and all aspects of the testators financial and personal affairs considered. In the old-fashioned way, asset lists may still be prepared (and updated) by the testator and left securely in the custody of the solicitor with the will.

If the issue of digital legacies alerts us to anything, it is perhaps simply that as practitioners, we ought to give greater thought to prompting clients to think about any assets (whether or not of a financial nature) which are held digitally or may only be accessible online - and the most effective way of recording and passing that information is through PRs.

Richard Hearne is a legal executive associate at Thomson Snell & Passmore

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