Digital Afterlife – are you, your affairs and your Will ready

23 June 2017

Author: Stephanie Johnston
Practice Area: Private Client

Stephanie_johnston_resized

The drafting of wills and the administration of estates is often referred to as the oldest and most long standing role of a legal advisor. It is also one of the advisor’s most valuable roles. The Probate Court was established in January 1858 in London to prove wills made throughout England and Wales and the first form of inheritance tax dates back to 1796. While throughout that time practitioners have always had to adapt to an ever changing society, perhaps such changes have never been so keenly felt as in today’s extraordinarily fast paced environment. The practitioner must be prepared and likewise the client!

It used to be the case that people would have left their treasured possessions, such as their vinyl music collection or classic book collection, to the next generation or an old friend and it was as simple as stating this in your will. Then on death the physical possessions would pass to the beneficiary.

In today’s society, you would be hard pushed to find someone who does not have a digital presence, whether this is in the form of a Facebook or Twitter account, Amazon or PlayStation live account.

Unlike traditional assets where a paper trail would be easily located, there is not necessarily the same paper trail for a person’s digital assets and during the administration of an estate digital assets can easily be overlooked.

Consideration must therefore be given to your digital assets when undertaking your estate planning, from the ownership of your favourite selfie on social media to the location of your online shopping accounts.

The value of Digital Assets

Whist many digital assets are of a sentimental nature such as photographs which have been uploaded onto Facebook or Instagram, it is estimated that £25billion of assets in the UK are held digitally.

With people now purchasing digital versions of their music collections and e-books, the need to leave your vinyl music collection or classic book collection is negated as these ‘traditional’ assets are now held electronically.

Other digital assets may be of value to your estate with others containing a debt. It is therefore important that digital assets can be located by your executors to determine their value, both financial and sentimental. Unfortunately legal ownership of digital assets is not always as straight forward as it appears.

Who owns your Digital Assets?

It is a misconception that you own the contents of your online presence. It is more likely the case that when you sign up to social media you simply have a licence to use the website’s services. This is usually outlined in the terms and conditions, highlighting the importance of reading those all-important terms and conditions which we often forget about.

These terms vary depending on the provider but the general position is that the licence terminates on death and is non-transferable, therefore making the transfer of these assets to the next generation difficult.

America has attempted to legislate in this area and the Uniform Fiduciary Access to Digital Assets Act was enacted in 2014. This legislation is to provide executors access to manage someone’s digital assets. There is no comparable legislation in the United Kingdom and a Grant of Probate may not be sufficient to enable executors to gain access to a person’s digital assets. It is therefore the role of an executor to liaise with each provider in respect of a person’s digital assets after death.

How to plan for your Digital Assets?

We would recommend for instance that our clients keep a detailed note of all of their digital assets and keep the note regularly updated. A note can be stored alongside your will and in the event of your death it can be easily located.

If possible, back up all sentimental digital assets such as photographs and videos onto an external hard drive. This will help protect you should the Service Provider of your social media account delete your account upon notification of your death.

Our firm’s private client team specialises in providing estate planning advice. Should this be of interest to you, please contact Neil Bleakley, Fiona Wallace or Stephanie Johnston.

Back