Written by Anna Coakes
For those who are constantly using e-mail, Facebook and Twitter, have you ever given a thought to what might happen to your ‘digital life’ following your death?
Every day, we switch on, log on and seem to conduct ever-increasing aspects of our lives online – from banking to business, shopping or communicating with friends and family, and just about everything in between.
The ownership of, and access to, our ‘digital lives’ can be complicated and uncertain. You may not perhaps have ever given any thought as to whether there is a monetary value attached to your iTunes account or Kindle library, or whether the music or e-books you have paid to download are owned by you to deal with as you wish.
Furthermore, access to online accounts is usually restricted by password, meaning that they are specifically designed to restrict or prevent access. Now is the time to consider whether you want someone to access and close your accounts or to manage your assets for you after your death. If you have followed the ‘never share your password’ rule, that isn’t going to be as easy as it sounds.
It is impossible at the moment to point to any definitive legislation about the treatment of digital assets. The law has yet to catch up with advances in technology in this regard. Each provider of an online service (be it e-mail, photos, books, films or social media) has its own terms and conditions. If you held the physical books, CDs, records and letters, these would all form part of your estate and control would vest in the executor or administrator of your estate. However, all that digital property is intangible and far more difficult to define. Below are some examples of how some digital providers deal with this situation.
Google has introduced a facility for Gmail by which messages and data are either sent to a nominated person or deleted after a period of inactivity on the account. The public policy blog for Google states that an account holder can nominate a person to whom messages and data should be sent after a defined period of inactivity.
Twitter states that it will co-operate with a person acting on behalf of an estate to de-activate an account held by the deceased, but it will not provide access to the account itself.
Facebook will not provide login information after a person’s death but will allow the account either to be ‘memorialised’ or for the profile to be removed.
Both Facebook and Google have faced legal action in the United States following a claim brought by the parents of Benjamin Stassen. Mr Stassen committed suicide in 2010 and following his death, his parents wanted access to his accounts. Both Google and Facebook refused to provide access on the grounds that it was a breach of the account holder’s privacy. The court ordered that access be allowed – Google complied; Facebook did not.
Until legislation catches up with technology, there are steps that can be taken to deal with the issue of digital assets and access. If you have made a Will (or are thinking of doing so), here are some useful steps to take:-
1) list all of your digital activities, for example, e-mail, banking, shopping, photos, social media, etc.;
2) make a list of the account details, e-mail addresses and login details and choose the people you would like to access this information, and what you would like them to do with it; and
3) create a spreadsheet, letter of wishes or an encrypted/password protected file on your computer and tell your executors how to access it should the need arise. If you create a letter of wishes, make sure that it is kept with your Will – it can then be updated as and when necessary, rather than having to make amendments to the Will itself.
Whilst this is an area of law that will keep changing, taking some steps now to think about a digital legacy will at least provide your executors with a starting point to deal with that legacy.
at the outset, are just some of the simple steps that can be taken. Ultimately, these could be a crucial line of defence should things go wrong.
Contact the Author
I qualified with a BA/LLB University of Newcastle (NSW), College of Law – Diploma of Legal Practice in Sydney (NSW), before being admitted as a solicitor to the Law Society of England and Wales in 2006. I have 15 years post qualification experience and my practice areas include Probate and Administration of Estates, Wills, Inheritance Tax and Trusts. I currently spend 40% of my time working for uncontested probate. I am Member of STEP, a Solicitor of the Supreme Court of NSW and a Solicitor in England and Wales. Outside of work you can find me cycling, or on muddy dog walks in the country.