Digital legacies: the state of affairs

Dr Ritesh Chugh of Central Queensland University, Australia, says you should “prominently engage in planning for your digital legacy”. A digital legacy may sound like a term used only by those of the technological avant-garde, but to many practitioners it is a very real issue – and Parliament is taking notice.

According to the Digital Legacy Association, a digital legacy, comprised of digital assets, “is often shaped by interactions the person made and information that they created before they died”, including sentimental assets such as “social media profiles, online conversations, photos, videos, gaming profiles and their website or blog”. It may also include monetary assets such as cryptocurrencies and NFTs.

Indeed, an estimated £25 billion of digital assets are held online in password-protected cloud storage solutions, and many sentimental assets are invaluable.

Such assets are becoming increasingly prominent within people’s lives, yet many do not make provisions for their digital assets upon death. In such cases, there is currently no legislation giving loved ones a right of access to a deceased person’s digital devices and accounts.

The Digital Devices Bill, tabled in January 2022 by Ian Paisley MP, aims to address this. It would “grant a right of access to the digital devices of a dead or incapacitated person to their next of kin; and for connected purposes”. Mr Paisley said:

“Every day, without realising it, we are creating an even larger digital footprint as we go through our lives, both in a personal way and in our financial lives online. What happens to that information when someone unexpectedly or tragically dies?

Leaving a treasured possession such as a photo album or a collection of memorabilia and precious memories used to be quite easy, but in the ever-increasing digital world and digital age, that now often intangible property may be buried beneath layers of cyber-security.

The Bill will go some way towards unlocking and finding a way through [the] labyrinth. It will allow next of kin the automatic right to access to a person’s digital device and place a responsibility on the tech companies to unlock devices for those next of kin who do not have the access codes for devices left by the deceased.

It will avoid unnecessary legal action by the next of kin. It will remove forever the unnecessary wall and unlock, for many, happy memories and access to what they thought was lost archive material about their loved one.”

The labyrinth mentioned by Mr Paisley is an increasingly familiar one for practitioners. A 2021 survey conducted by the Society of Trust and Estate Practitioners (STEP) and the Microsoft-funded Cloud Legal Project found nearly a quarter of professional inheritance advisors said their clients had struggled to access family members’ digital assets, and one in five reported an uncooperative attitude from service providers in attempting to access such accounts. Speaking to Today’s Wills and Probate, Emily Deane, Technical Counsel and Head of Government Affairs at STEP, underlined the importance of the Bill:

“STEP is urging governments and online companies to produce solutions so that families can plan for their futures with certainty and clarity. We are delighted that the Private Members Bill is highlighting this issue, which is becoming far more prevalent, and we hope that the government will acknowledge its importance and focus on a solution.

Ideally, STEP would like to see online companies review their policies and practices in relation to access to accounts and we also believe that governments need to focus on law reform to enable effective estate planning in relation to digital assets.

However, a legislative solution would need to consider access to these accounts but also safeguard the privacy rights of the deceased as well.”

It remains to be seen how any potential legislation will square the issue of privacy with a right of access for next of kin. This, as well as the Bill still being in an early stage (2nd reading), means it is important that a digital legacy is provided for in a will. Dr Ritesh Chugh, Associate Professor in Information and Communication Technologies in the School of Engineering and Technology at Central Queensland University, Australia, told Today’s Wills and Probate how a digital legacy can be planned for:

“It is vital to plan what happens to those accounts and data after you die. Rather than being a passing thought, you should prominently engage in planning for your digital legacy so that your digital information is easily accessible to someone you trust. Having a good digital legacy plan will give you and your loved ones peace of mind after your demise. It may also prevent misuse and identity theft.

Fortunately, many technology platforms such as Apple, Facebook, and Google allow their members to plan for their digital afterlife. They allow us to control what happens to our account ahead of time and appoint a legacy administrator. However, others such as Microsoft, Twitter and LinkedIn are not very forthcoming, offering little to no functionality for safeguarding our digital assets or designating someone. Some steps to create your digital legacy plan include:

– Making a list of all your digital assets/online accounts.

– Using the legacy planning features of online platforms and appointing a legacy contact.

– Writing down your digital legacy details and how you want the online accounts to be handled.

– Sharing details with a trusted family/friend, aka a digital executor.

– Updating the digital legacy plan regularly.

– Using a password manager to store all your usernames and passwords in one place securely.

– Seeking professional advice.

We hope all technological platforms will offer digital legacy planning functionality to allow users to decide whether their information should be stored, destroyed, or memorialised.”

Whether one does plan their digital legacy before death or it is left to the bereaved to pick up the pieces, it is a tricky process – one which end of life admin service Settld aims to simplify. Vicky Wilson, Settld’s co-founder and CEO, commented:

“Given that we live in a predominantly digital world, it’s surprising to see the number of service providers who still rely upon a bereaved customer sending them physical documents or picking up the phone. For this reason, bereavement processes are often more time-intensive, stressful, and tricky than they need to be.

In addition, when it comes to letters and cheques sent by post, we often see things getting delayed and critical information getting lost. Settld exists to help organisations embrace a secure digital solution for all bereavement enquiries, making sure that accounts are dealt with swiftly and safely. Technology companies such as ours can do a lot to help lighten the admin load for bereaved people, as well as customer service staff on the companies’ side. However, we need these large organisations to embrace the change and many of them appear incredibly reluctant.”

The Digital Devices Bill appears to have the support of many within the industry, though it faces many hurdles, such as the reluctance of technology companies and the issue of privacy rights of the deceased. In the meantime, it is increasingly important that digital legacies are provided for. The Law Society have encouraged people to “leave clear instructions about what should happen to their social media, computer games and other online accounts after their death”.


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