A Populus survey commissioned in June 2020 by the Law Society found that just 26% of respondents know what happens to their digital assets after they die. Of those surveyed who have a Will, an overwhelming 93% had not included any digital assets in their Will.
What are digital assets?
These are the possessions an individual accesses on a digital device such as a laptop, mobile phone, tablet or personal computer. They are normally accessed via an online account run by a third-party provider such as Google, Facebook, Netflix, Apple, Microsoft or Amazon. Examples of digital assets are:
- Photographs and videos stored online (and sometimes also stored on a device such as a smartphone, digital camera or personal computer).
- Social media statuses and tweets.
- Online gaming avatars, worlds and lands.
- Information contained in documents, such as emails.
- Cryptocurrency (such as Bitcoin) and other virtual currency.
Technology is a huge part of modern life and our digital assets include everything from photos stored online to online banking and email accounts. Photos, social media accounts and emails from loved ones are often just as treasured as physical possessions – and yet very few people understand what happens to their digital assets or why it is important to include them in their Will.
Generally, succession to these assets is most sensibly dealt with under a personal chattels legacy. Testators often provide that personal possessions are to be left in a general gift with the spouse, executors or a chosen group of beneficiaries (such as children) given the power to decide how they are distributed.
Testators may need to consider whether the definition of personal chattels or possessions used in their Will encompasses digital assets. Precedent clauses relating to personal possessions often adopt the statutory definition in section 55(1)(x) of the Administration of Estates Act 1925 (as amended). This definition will not include digital assets that, by their nature, are intangible. Those drafting Wills to include digital assets may need to consider amending personal chattels legacies to include intangible assets held digitally.
Valuable Intellectual Property
Equally, it is important to consider what digital assets should be excluded from any definition of personal chattels that is to be contained in a Will so as to ensure that valuable intellectual property is excluded. A number of rights exists over digital assets including:
- Copyright lasts for the life of the author plus 70 years from the end of the calendar year from their death. There is likely to be an element of copyright in many of the digital assets that are created by private individuals through the online accounts they use. On the death of an account holder, copyright in any assets held online passes to the deceased’s personal representatives who will hold it for the beneficiaries of the estate.
- A duty of confidentiality also attaches to information where the context suggests that there is a reasonable expectation that the information is private. Personal representatives generally step into the shoes of the deceased following death so that they should be able to assume control over the disclosure of confidential information. It is an asset of the estate and should be exploited for the benefit of beneficiaries but if the information contains anything that could ruin the deceased’s reputation, devalue other assets in the estate or cause distress to beneficiaries, the personal representatives might have a duty to keep them confidential. Personal representatives. In these situations, the PRs may need to seek directions from the court.
The above is not an exhaustive list of issues that arise in respect of digital assets post death. In the light of the above, it is imperative that individuals review the information and assets held in online accounts and take advice about and consider how they should be administered following death