In today’s ever-expanding digital world, you would probably have to think long and hard to name someone that has absolutely no digital assets, and we are pretty confident that many of us would not be able to do so. Even our elderly parents of grandparents nowadays have WhatsApp and smartphones.
What is a digital asset?
Digital assets include files stored on digital and or electronic devices; let's break that down:
Files could mean anything from word documents to general data such as the history of your WhatsApp messages to photographs and such similar items.
Digital or Electronic Devices could mean anything from a desktop PC to a laptop to a mobile phone, but also includes tablets, phablets, flash drives and external hard drives.
Loosely speaking in a wide interpretation of digital we could also mean all the resources held in the cloud.
As technology develops, the definitions will become wider and broader.
Digital assets include, but is not limited to, emails received and sent, email accounts, digital music, digital photographs, digital videos, software licenses, social media accounts, file sharing accounts, financial accounts, domain registrations, DNS service accounts, web hosting accounts, tax preparation service accounts, online stores affiliate programmes, other online accounts and similar digital items which currently exist or may exist as technology develops.
So what’s the big deal?
Whilst we are alive – there is no big deal – if we lose our phone or laptop, we can get it replaced, usually without losing the data stored on it. That is probably because the file(s) or digital asset(s) are no actually stored on the device itself in any event. Even if we forget our usernames and passwords, we can retrieve them. There is a server somewhere in a place we’ve never heard of that can be accessed by someone we have never met simply by telling them the name of our first pet. Easy…
However, when we pass away, the issue becomes way more problematic.
As far as the law is concerned, how or whether you can pass ownership of your digital assets to a chosen beneficiary depends on the policy of the Internet Service Provider (ISP) holding your account. Have you ever bothered to read the copious pages of terms and conditions that you need to click to accept before you can open an online account? Don’t worry, you’re not alone, and it’s probably safe to assume that digital asset succession wasn’t at the top of your list of priorities when you signed up to Twitter, WhatsApp or iTunes in the first place.
It might be worth having a read of the rights and responsibilities of an account holder on death, though whilst reading, don’t be surprised to find that it breaches the ISP’s policy even to share your username and password.
Actually, you will probably also find you do not even own the account at all, and that you are just leasing it during your lifetime.
To cut to the chase, you have probably guessed by now that this is an area which can be fraught with legal complexities on death – just when you do not need that headache.
You could quite easily include a digital assets clause in your Will, giving your Executors the discretion to decide who should access them or even benefit from them where appropriate. You can be prescriptive with things like photos or music, and you may also want to consider whether your social media accounts should be memorialised.
Whatever you decide, digital assets should be on your list of considerations when preparing a Will.
The information provided in this article is not intended to constitute legal advice and you should take full and comprehensive legal advice on your individual circumstances by a fully qualified Solicitor before you embark on any course of action.
Wills & Probate Team
0207 183 2898