Managing Digital Assets After Death: The Importance of Planning Ahead and Guidance on Handling Someone Else’s Digital Legacy
- lifeatredhouse
- Oct 16, 2024
- 5 min read
In an increasingly digital world, much of our lives are stored online— from social media accounts, online banking and cryptocurrency to emails and cloud storage. When a loved one passes away, dealing with these digital assets can be just as overwhelming for those left behind as their physical possessions. I believe it's something that we simply aren't giving enough consideration to, whether that's allowing someone to access all those photographs of our family and friends after we've gone or leaving details of all our online accounts, savings or memberships. It's certainly something that we are all going to have to pay more attention to, as we are encouraged to 'go paperless'.
In a recent conversation with Lydia McCaslin Head of Wills, Probate & Trusts and Partner at Mincoffs Solicitors, we discussed the importance of planning ahead to manage your own digital assets and the legal steps needed when handling someone else’s digital legacy. Lydia, an expert in estate planning, highlights how proper preparation can ease the burden on loved ones, ensuring they can access or close online accounts in accordance with your wishes. From creating clear instructions in your will and leaving accessible information, to understanding the challenges executors face in navigating online platforms after death, our conversation sheds light on the critical steps you can take to simplify this process for everyone involved.
What are considered to be digital assets?
Digital assets are possessions accessed via an online account on a digital device, such as a tablet or phone. Examples include photos, videos and music, as well as information created in email accounts and conversations in social media.
Most people access actual assets and services such as money in bank accounts and utilities via online accounts. Although the underlying asset or service is not a digital asset, access is controlled via a digital portal by typing in a username and password.
Separately, “cryptoassets” is the collective terms commonly used to refer to cryptographic digital assets. Cryptocurrencies, such as Bitcoin, are a subset of cryptoassets.
What steps should be taken to manage or close social media accounts after a relative's death? Is it possible to leave your loved one’s account as a memorial if inactive whilst not leaving it vulnerable to online scams or hacking?
Although personal representatives can legally take control over a deceased person’s assets, access to online accounts is governed by the contractual terms and conditions of the internet service providers, who do not usually recognise those rights. Therefore, it is much easier to make arrangements for the management of your social media accounts during your lifetime.
Some social media platforms, such as Facebook, Apple, Google and LinkedIn allow the users to set up legacy tools. Google, for example, allows you to allocate an inactive account manager, who can gain access after a period of inactivity.
Some also allow an account to be memorialised, whereby the account is frozen so no one can log into it. Only verified friends and family can see the profile or locate it in a search and they may post comments to the page in remembrance of the deceased. Once memorialised, an account can’t be accessed or unlocked.
How can individuals ensure their digital assets, such as online banking or cloud storage, are passed over to the control of their executor with minimum stress?
The best advice is to make a will, appointing executors who you would be happy to deal with your affairs after your death. This gives peace of mind that only people chosen by you can step into your shoes and deal with your assets.
However, when a bank becomes aware of an account holder’s death, they will freeze the accounts, which would lead to any online banking arrangements ending even for the executors.
Are there any privacy or legal issues to be aware of when accessing a deceased person’s email, social media or mobile phone activity?
The terms and conditions of internet service providers often prohibit account holders from recording details of their logins and passwords. This can make it very difficult for the personal representatives to gain access to, and control of, a deceased person’s digital assets. Complex laws around confidentiality and privacy can also make matters difficult causing some issues to be referred to court for directions.
Copyright protection may apply to digital assets created by individuals through the online accounts they use, such as the original content of an email or photographic work. Copyright protection will pass to the deceased’s personal representatives together with the other assets of the estate.
What advice would you give to people who want to prepare for the future management of their digital assets in their estate planning and what information should they consider to pass on to whoever will be handling their affairs following their death ?
It should be appreciated that maintaining access to online accounts is essential for either financial or sentimental reasons. It is, therefore, important to plan what will happen to your online accounts when you die.
The first step would be to create an inventory of online accounts with passwords and login details, which should be kept under review. The inventory should be stored securely with other important papers at home, perhaps alongside your copy of your will, but not kept electronically or given to anyone else – just make sure your executors know that it exists and where they may locate it. Include here the passwords and login details for your laptop, phone and any household devices that are controlled remotely. It is important that your personal representatives can access these devices so they can access information and assets stored on them after your death, for example, in order to complete tax returns or to administer your estate. An alternative would be to use a commercial password manager, which will create a master login that provides access to all passwords and log in details.
The next step is to clarify what will happen to your digital assets when you die if you do nothing by reviewing the terms and conditions you agreed to when you created the account. There may be specific terms on which assets will be administered on death if there is no activity in an account for a long time (including the destruction of some assets).
Other things you should consider are taking hard copies of photos you want to pass on, or save them to a USB device or hard drive.
People with cryptocurrency should make sure that the keys to their digital wallets are stored securely and that their personal representatives know how to access that information. Again, this information should not be stored electronically or sent to their parties electronically.
If you would like any social media accounts to be memorialised, you should give written instructions to your personal representatives and keep such instructions under regular review. Those instructions could include leaving a particular message for followers or friends and whether such a message should be posted on personal pages on social media and who should be able to see them.
Lydia McCaslin is Partner and Head of Wills, Probate & Trusts at Mincoffs Solicitors.
Lydia advises on all aspects of succession planning, including the preparation of wills, trusts and inheritance tax planning, as well as the administration of estates. She also deals with matters of capacity, supporting clients with the preparation of Lasting Powers of Attorney and handling applications to the Court of Protection.
Passionate about issues facing elderly clients, Lydia was one of the first accredited Lifetime Lawyers and is also a full member of STEP.
Mincoffs Solicitors is a leading private client & corporate law firm in Newcastle upon Tyne, providing expert legal advice to individuals & businesses throughout the North East region and nationally.
Contact Mincoffs Solicitors
T: 0191 281 6151
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