Considering Digital Assets in Death

No-one can be an expert in digital assets as the space is changing so rapidly. If I’m honest, it’s a subject which could be described as a ‘hot potato’ with private client solicitors because there are no right answers when it comes to dealing with digital assets in probate. It’s also an unregulated area, which could potentially expose liability and there is much uncertainty about the topic.

Yet, digital assets are not going away and as younger generations who have more online interaction age and pass away, the problem will only persist and grow.

My own fascination with digital assets came about during the Covid Pandemic. Overnight, many organisations shut their offices and moved online, and society’s reliance on the internet suddenly accelerated. I was at the start of my career, and I realised digital assets would become incredibly important in the future and I needed to get up to speed as much as I could.

As a member of the Society of Trust and Estate Practitioners (STEP), I’m sent daily digests and I joined their special interest group on digital assets to help expand my knowledge. I also attended Estatesearch’s on-demand webinars on digital assets and had seen their Digital Assets in Death guide. At Willans, we’d already created a fact sheet on digital assets, but a colleague suggested I got in touch with Estatesearch to see how we could make it more client friendly.

I ended up collaborating with Estatesearch to create an updated ‘Digital Assets in Death’ guide, which is now co-branded. I was happy to provide my insight from a private client solicitor’s perspective and we also worked together to help develop and refine Estatesearch’s Digital Asset Search, which launched last year. The Digital Asset Search now helps solicitors establish the financial digital assets held within an estate.

One of the challenges with digital assets is that it is such a huge area that it can feel overwhelming.  Digital assets can include financial assets such as cryptocurrency, online gambling accounts, Paypal wallets or online marketplaces. However, digital assets can also be sentimental, such as photos held on a social media account or documents on a cloud drive.

As a solicitor, I’ve always found it surprising what people prioritise when a loved one passes away.  For some, it is money held in a bank account, for others a painting or photos are equally as important.  At Willans, we advise clients to make a list of assets including digital assets as far as possible, so it makes it easier for their families when the time comes.

Digital assets is a tricky area but private client solicitor firms do need to take steps to understand and address this space. A good place to start is the ‘Digital Assets in Death’ guide and Estatesearch’s webinars on the topic. Estatesearch’s Digital Assets search can also help demonstrate due diligence in identifying financial assets and liabilities.

At Willans we send out a copy of the ‘Digital Assets in Death’ guide with every Will questionnaire and remind clients about digital assets during meetings. I am also in the process of drafting an example inventory to provide to clients. This is quite a task! Therefore, in the meantime, STEP provides an example inventory. Although at 40 pages long, it’s fairly lengthy, it does highlight the expanse of the subject.

It’s also possible to subscribe to STEP’s emails for regular updates. Furthermore, the Law Commission published a report on digital assets in 2023 and a more recent short consultation took place in February 2024, which may well offer further updates in the future. It’s possible to subscribe to updates through the Law Commission’s website.

As a firm, Willans always aims to take care of our clients. We offer quality, tailored legal advice, and form lasting relationships with our clients. As a team, we are approachable and friendly, and our clients always know where they stand.

However, digital assets is a difficult area. Not just in death but also in cases where clients have lost mental capacity. We do our best to keep updated in this rapidly evolving area and encourage other firms to takes steps to do the same. In this way we can ensure due diligence that all clients’ assets are identified as far as possible and correctly distributed to beneficiaries, whether they are digital assets or otherwise.

This article was published by Willans as part of their advertising agreement with Today’s Wills and Probate.

The views expressed in this article are those of the submitter and not those of Today’s Wills and Probate.

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