It is a sad fact that the pandemic has prompted more people than ever before to consider making a will so that they can take comfort in the knowledge that their assets will pass to those they wish to benefit from their estate after their death. But how many people think about what happens to their digital assets? A recent survey by the Law Society revealed that only 7% of those surveyed with an up to date will (which was itself only 29% of the total) had included their digital assets.
Do you know what digital assets you have?
So many of us live much of our lives online and this has only increased over the last 12 months. But much as we might take this for granted, have you ever stopped to list the digital assets you have, where they are stored, and how your family or heirs will access them after your death? Although the law does not currently address, specifically, the bequeathing of digital assets, in some cases it has become an established procedure for a digital clause to be included in a will detailing who is to receive what. But a word of warning – listing your digital assets in your will must never include a list of passwords or user names. Although your executors might need them to access your various accounts, such information must be securely stored elsewhere. Examples of digital assets might include:
- Online financial assets including Paypal, Amazon, eBay, gaming credits, and cryptocurrency;
- Social media platforms including Facebook, Twitter, Instagram and YouTube;
- Photographs, emails, and documents stored in the cloud;
- Digital artwork, music composition and writing;
- Online accounts for banking and other financial services, and email accounts
Map your digital assets
Make an inventory of your ‘digital’ life – you will probably be surprised by the extent of your digital footprint even if you consider yourself to be a modest user of online services.
One of your first considerations will be whether or not you actually want to hand on any of your digital assets – you may not want your emails, photographs or digital works to be accessed by anyone else. Assuming that you do, you need to plan now. If your executors do not know what assets you have (let alone how to access them), it will extend the time it takes to complete probate, adding to the upset and anxiety that your family and friends will already be feeling.
Although we are discouraged from recording our passwords (indeed, banks exhort us never to write down our passwords and to do so is often a breach of their terms and conditions), many people do because the number we now have to remember makes it difficult not to. Recognising this difficulty, the Law Society does suggest ‘keeping a clear record of your passwords’ but storing them securely. This could be done by using an online ‘vault ’ such as LastPass, KeePass or 1Password (all of which are suggested by the IT magazine, Wired) for a fee (although do bear in mind that these companies may go out of business) or in a sealed envelope in a bank or law firm’s strong room. However, as passwords regularly need updating, storing them remotely will bring its own logistical challenges. Ensuring that your executors know how to access your passwords is particularly critical for online financial accounts, such as cryptocurrency which cannot be retrieved without the ‘key’ to your cryptowallet. Apple is known to refuse to unlock their devices for bereaved relatives so if you have photographs or creative work stored digitally on your iphone or ipad, it is worth considering storing them on an external hard drive for your beneficiaries to access.
Leave instructions in your will
Once your inventory is complete , leave your executors instructions in your will how you want them to be distributed, for instance you may want to bequeath your cryptocurrency to a friend rather than it being swept up into your residual estate. Let your executors know where your inventory is kept (again, an online vault, safe or strong room are all options). There are organisations such as the Digital Legacy Association where you can download a spreadsheet checklist to help you list your digital assets.
You can also state how you would like your social media accounts to be dealt with; you may want, say, your Facebook account, to be deleted after your death or memorialised. Each social media platform has a different approach to dealing with accounts of deceased people and it is worth checking their terms and conditions. The same applies to digital libraries like iTunes and Amazon Kindle; most simply give users a licence to access their music or books which ceases on the death of the subscriber. So, although you can bequeath your kindle to someone, they won’t necessarily be able to inherit your digital books.
A similar situation applies to storing photographs and documents on the cloud – again, storage is permissible by licence so you will need to check the provider's terms and conditions. This is another good reason to back up copies of your photographs and other work on your computer or on an external storage device so that you can hand these on to your heirs.
Keep your will up to date
Although the number of people making a will is showing a significant increase, it is estimated that fewer than 60% have a will in place, and of those who do, less than a third are up to date. We recommend that our clients review their will at least once every five years, and more frequently if a major life event occurs such as divorce, having children, or coming into an inheritance. Regular reviews will remind you to keep up to date with all your assets, both tangible and digital, so that you leave your affairs in good shape.
