Digital assets are now a part of our everyday lives, such as social media accounts, income-generating Instagram, blogs or YouTube accounts, online-only money accounts, or cryptocurrency such as Bitcoin.
It is estimated that there are around £25 billion of UK assets which are digital. While most of these are of sentimental value, such as photographs and social media accounts, there are digital assets that are, or have the potential to be, of significant value and provide an income stream for many years to come. Music, books, commercially valuable photographs and videos are more frequently published online rather than in a physical form such as CDS or paper books and can sell for many years after the creator has died. In addition to the issue of ownership of digital assets after death, there is also the issue of what the owner would wish to happen to his digital assets should he die – for example, closing down social media accounts or retaining a “legacy” page.
DIFC Wills Service Centre, a United Arab Emirates company, carried out a survey last year asking residents if they would want to protect their digital footprint and social media legacy and be able to state whom they wished to inherit those online assets. An overwhelming 89% said they would want their social media accounts deactivated. Sean Hird, Director of the DIFC Wills Service Centre, said: "The law on the disposal of online assets is changing fast with the latest ruling out of Germany showing the direction that lawmakers are now taking. Rather than leaving a Will silent on such matters, and hope the law will evolve in a way consistent with your wishes, it makes sense to leave clear instructions in your Will on who should and shouldn't have access and ownership to your accounts when you pass away.”
The recent ruling Hird refers to is the case of the mother of a 15-year-old girl who died after being hit by a train. In a landmark ruling, the Federal Constitution Court (Germany’s highest Court) ruled that the mother should have access to her late daughter’s Facebook account. The ruling said that "parents can inherit the contract between their child and a social media platform in the same way they would be able to inherit physical documents such as diaries and private letters. From an inheritance law view, there is no reason to treat digital content differently."
The UK currently has no legislation that deals specifically with digital assets on death. Most platforms will terminate an account upon death, which may be in direct conflict with the individual account holder’s wish to pass on their accounts to a loved one to manage after they have died. If someone wishes to grant authority to an individual to access their accounts following their death, it is important for that authority to be set out clearly. Otherwise, there may be a breach of section 1 of the Computer Misuse Act should anyone attempt to access accounts without the specific permissions.
We would suggest keeping an inventory of all digital assets and updating it regularly and to keep the inventory with your Will. The Will itself could contain a clause relating to digital assets that hold sentimental value, such as photographs on social media accounts, but make sure you don’t include any sensitive information such as passwords in the Will itself. Remember, the Will becomes a public document after probate has been granted. A clause relating to digital assets that are of monetary value or provide an income stream should also be included in the Will.
It is also a good idea to back up any assets such as e-books, music, commercially valuable photographs, videos and other content to preserve them in the event they are deleted from the service provider’s server.
As we accrue more and more online assets, there will come a time when legislation is required to ensure that assets are not lost on death and can be inherited, or administered, by a named person. Until that time, however, we hope you find our suggestions useful when considering what will happen to your digital assets after you have gone.
If you wish to speak to one of our specialist solicitors about leaving digital assets in your Will or about Intellectual Property rights, please contact Oratto on 0845 388 3765, or email us – contact@oratto.co.uk
