Many of us make provision when creating a will for what happens to our physical assets when we die but many individuals will not consider what happens to their online accounts and data stored online after they pass away.
Today most individuals create online accounts and store data online. There is no legal definition of a ‘Digital Asset’ but consider a mobile phone, a personal computer, social media accounts, gaming accounts, emails and photos that are stored online.
Our world is becoming increasingly digital and careful consideration must be given to these types of assets at many stages; before death by the person who owns them and following death by the personal representatives. When making gifts of personal chattels, does the Will definition include digital assets or will the digital assets form part of the residuary estate and is the person making the Will aware of this? Care must be taken when drafting a Will so that beneficiaries only inherit what was intended for them.
Consideration should be given to the sentimental value of the data but also the nominal value. Are any of the digital assets subject to the copyright laws or data protection laws? Do you have the right to dispose of the asset by your Will or has a third party the right to the asset following your death? Are any additional powers required by the personal representatives to enable them to deal with the digital assets? For example is permission required to access online accounts or has permission been given for the memorialisation of social media accounts. A separate letter of wishes to the trustees of a Will may be appropriate in order to give them guidance or, a sealed list of login details stored with your Will may be helpful.
Personal Representatives must be very careful when dealing with the digital assets of a deceased and should take legal advice to ensure that they are complying with the law.
If you do not have a Will appointing Executors, it will be more difficult for digit assets to be dealt with.
Stacey Walker
Private Client Solicitor
