Ghost in the machine – wills and digital assets

We live in a world where technology is increasingly interwoven into our daily lives to the extent that losing a smartphone now ranks as a major life trauma; but what becomes of our digital assets and online presence after we die?  The answer depends on whether (or not) you plan for it. The reality is that most people do not, but with our modern obsession with all things digital, it is perhaps time to do something about protecting our valuable digital assets.

Digital assets fall into two broad categories: valuable and sentimental. Valuable digital assets include such things as cryptocurrencies, online investment/bank accounts, online store credits, intellectual property, and anything else which has a tangible dollar value attached to it. Sentimental digital assets, on the other hand, include photographs, personal videos, blog posts, social media accounts, and information held in email messages. So how can a Will manage these two distinct types of digital assets?

One of the primary jobs of your personal representative (the executor or administrator of your estate) is to get control of all your assets after you die so they can pass in accordance with your Will, or if you die without a Will, under our intestacy provisions. If, however, your personal representative does not: (a) have any knowledge of your digital assets; or (b) does have knowledge but has no way to access your digital assets, then the task to recover them becomes difficult or impossible, and valuable digital assets could easily be missed or lost forever.

In the case of cryptocurrencies, time is of the essence given the volatility of the asset class. Even a few days delay could see a dramatic drop in value, thus diminishing the value of your estate.  This is why it is vital to set out a roadmap for your personal representatives to identity all of your valuable digital assets.

With respect to sentimental digital assets, although no dollar value may be attached to these, they are likely to be invaluable to loved ones, and the fact they could be locked away forever in a remote sever to which no person has access will only magnify the grieving of those left behind. Dealing with large social media organizations is often difficult and highly bureaucratic.  It is entirely possible requests for access by anyone else but the account holder will be ignored or hurdles will be put in your path which are designed to discourage you from proceeding. This is not necessarily because these organizations are evil or ambivalent, but rather they may be required by law to protect your personal data even after you die.

With respect to social media accounts such as Facebook and Twitter, friends and followers may be unaware of your passing, and a well-crafted and thoughtful message could spread news quickly and efficiently and could also include such useful information as funeral arrangements, etc. An individual may wish to see his or her social media accounts be deactivated immediately after death, or alternatively, they may wish for them to continue on for a while to allow friends and family to post their condolences or other supportive messages. This can be easily achieved with the right provisions in your Will.

So how can you ensure your digital assets are properly managed after your death? The only way to guarantee this is to prepare a Will, which addresses these points. However, since your Will can be viewed by the public once it is probated, it should only contain provisions which makes reference to your digital assets, but the specific details should be set out in a separate document or schedule (i.e., a memorandum) which is kept apart from your Will. The Will should make reference to location of the memorandum so your personal representative can quickly and easily access the information, but no further details should appear in the Will itself.

The memorandum should contain a detailed list of all your digital devices and digital assets with usernames and passwords and any special instructions on access. It should also contain instructions regarding the operation of social media accounts and any messages which should be posted after your death. Instructions could also be given to delete information, which could cause embarrassment to the deceased or the family and friends of the deceased. However, that could give rise to a conflict of interest for your personal representatives if the data has some tangible value attached to it (eg. an unpublished novel which could be valuable to the estate), since a primary duty of your personal representative is to maximize the value of your estate for the betterment of your beneficiaries.

Given the wide number of online accounts, some people now use online password portals that give access to all online accounts in one place. This may be something to consider for those with numerous online accounts since it should make the administration of your estate more cost- and time-efficient.

Your personal representatives will have to be careful to ensure they are not breaching any confidentially terms and conditions often imposed on users of social media and online data storage providers, so it is best to include some language in your Will which gives your personal representatives specific permission to access your online accounts and personal data.

The topic of digital assets is one that will continue to evolve as the technology evolves. Given that information is the most valuable commodity in the world today, is not it time it received the attention it deserves?

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