Dealing with digital assets in wills and probate

The majority of the population now have a range of smart phone devices, laptops and social media accounts, all with their own passwords, and mostly containing digital records such as photographs and music.  Personal information is shared on “the cloud” and uploaded to a variety of different websites.  The question is how should these assets be dealt with upon death?

How do my executors deal with my digital assets?

The executors that you select in your Will have a duty to collect in the assets of the deceased’s estate.  It will therefore be necessary for the personal representatives to gather all the relevant information with regards to digital assets that you own.  Due to the increased use of protected digital information, we recommend that you leave a sealed envelope containing a list of your digital accounts, usernames and passwords, not to be opened until after your death.  Alternatively there are secure “digital lockers” which release such information to your nominated recipient after your death.

Is accessing such data online a breach?

Under the Computer Misuse Act 1990, an executor can be guilty of an offence if he accesses online accounts without authority.  Most online companies have explicit policies on what happens when someone dies, and it is recommended that these are reviewed.  For example, to access a PayPal account, where money may be held, a personal representative needs a cover letter, death certificate, grant of representation and photo ID.  Facebook have dealt with this by introducing a “Legacy” page where a person can be nominated to deal with your account after you die.  In any event we recommend that the grant of representation is obtained and the terms of the service provider reviewed before access is attempted.

What can be gifted under a will?

As a starting point, if a client has a lot of information contained electronically, then an appropriate clause can be added to their will to leave “digital assets” (including files and information stored online) either to a named individual, or to the executors with an accompanying memorandum of wishes.  Most digital assets can therefore be dealt with as if they were personal chattels.  However, bear in mind that a library of music or books contained on, for example iTunes or a Kindle, is merely a licence to use that information, and such property dies with the person who bought it.

What about creating a digital will?

Wills made in the United Kingdom must meet the requirements of Section 9 Wills Act 1837, which require it to be in writing and signed by two witnesses.  Although there has been some consultation on the introduction of a digital will, it is unlikely that this will change in the near future.

If you need any assistance with setting up a will or forming a trust, do not hesitate to contact Laura Sentkovsky or anyone in the Private Client team at Meaby&Co.