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Digital Assets: How to make sure you can pass them on when you die

12th October 2023 by Tino Gundu

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In our increasingly digital world, the issue of digital assets after an individual’s death has emerged as a complex and multifaceted legal challenge. This could include cryptocurrencies, social media accounts, digital files, and online accounts. These assets often hold sentimental, financial, and even intellectual value. However, the nature of digital assets could present legal challenges when it comes to inheritance, transfer of ownership, and managing these assets after death.

Complexities of Determining Ownership

Determining ownership and access rights to digital assets is sometimes complex due to varying terms of service agreements and the intangible nature of these assets. Traditional property laws may not be directly applicable, leaving a legal void. The lack of clear legal precedent can lead to conflicts between service providers and the people inheriting over access to accounts and data. To address this, individuals should consider incorporating digital asset ownership and access provisions in their estate plans.

Social Media Accounts

Many social media platforms have put measures in place if the account holder dies. Platforms such as Apple and Facebook allow users to nominate a ‘Legacy Contact’ which will allow the user to have control of some aspects of the account, usually with a court order.

Platforms such as Twitter and Instagram allow requests for the deceased’s account to be deleted. Instagram will also allow requests for the page to be memorialised.

Do you own the content?

You may think you own a digital music or book collection. However, you may only have access to this on a licence. This licence will likely die with you. Always check the terms and conditions of each provider to check if this can pass in your Will.

Ways to Include Digital Assets in your Estate Planning

• Digital Inventory: Compile a detailed inventory of digital assets, including account credentials, passwords, and instructions on how to access each asset. Store this information securely and ensure the designated executor or trustee can access it. Before sharing any access information ensure you check the terms and conditions to ensure you are not in breach of these.
• Digital Asset Trusts: Establish trusts specifically designed to hold and manage digital assets. This provides a structured approach to asset transfer and management, while allowing more control over access and distribution.
• Designated Fiduciaries: Appoint a digital executor or trustee responsible for managing and distributing digital assets according to the owner’s wishes. Ensure this individual is tech-savvy and understands the complexities of digital assets.
• Update and Review: Regularly update the list of digital assets and access information in your estate plan. Account for changes in asset types, ownership, or technology platforms.
• Legal Counsel: Consult legal professionals experienced in estate planning to ensure your plan aligns with relevant laws and regulations.

As the world of digital assets continues to grow, the legal complexities surrounding their ownership and disposition after death become more pronounced. Effective estate planning strategies that incorporate digital assets are ideal to ensure these assets are transferred smoothly and in accordance with the owner’s intentions. Keeping up to date with the legal landscape surrounding the matters of digital assets and engaging with legal professionals will help you safeguard digital legacies.