The world has changed exponentially in the past 20 years. It is not only property, businesses, and jewellery that make up possessions in an estate – digital assets can also make up a significant part of a person’s’s estate.
Clients are increasingly requiring digital assets to be included in their Will. However, the increase in digital assets is a fundamental change in what we consider an ‘inheritable’ asset and has resulted in many questions needing to be answered. How is a digital asset defined? Can all digital assets be inherited? And how can you make adequate provisions in your Will to protect digital assets?
Digital assets – no clear definition
There is no legislative definition of a digital asset in UK law. It can therefore be difficult to define what constitutes a digital asset for the purpose of inheritance. Is any information about you that appears on the internet a ‘digital asset’? Or is the term limited to content created by you?
Digital assets can include the following:
Personal
- computers, hardware, smartphones, tablets, flash drives, e-readers, digital cameras, flash drives, digital music players
- any content stored online (including in the cloud)
- online bank accounts, shopping, betting accounts, social media accounts and storage
- virtual currency such as Bitcoins
- domain names and websites
- a blog
Business
- digital assets owned by the business including computers, data, passwords to patents, financial reports, branding
- social media accounts
- assets of an online store e.g. Etsy, Ebay
- websites and blogs
- mailing lists, client emailing lists, subscriptions
United States law on digital assets
United States law is more advanced than the UK when it comes to digital assets and estates. The Uniform Laws Commission’s Revised Uniform Fiduciary Access To Digital Assets Act 2015[1] (FADAA), provides
“A fiduciary is a person appointed to manage the property of another person, subject to strict duties to act in the other person’s best interest. Common types of fiduciaries include executors of a decedent’s estate, trustees, conservators, and agents under a power of attorney. This Act extends the traditional power of a fiduciary to manage tangible property to include management of a person’s assets. The Act allows fiduciaries to manage digital property like computer files, web domains, and virtual currency, but restricts a fiduciary’s access to electronic communication such as email, text messages, and social media accounts unless the original user consented in a will, trust, power of attorney, or other record.”
and that,
“Digital Assets means an electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record.” (section 2(10))
A record is defined as:
“….information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.” (section 2(22))
So far five states have enacted the FADAA, and many other states have legislation dealing with what constitutes a digital asset and records.
Another impairment to collating digital assets is that often only the deceased knows of their existence. To ensure executors are aware of and able to access digital assets after your death, you should consider the following steps:
- keep a regularly updated list of online content you have created and store this in hard copy. Usernames should be included but not passwords; these can be stored with specialist companies that can keep them secure.
- for digital assets, you wish to be included in your Will, it is crucial you make provisions to allow the executor of your estate to access them. If the service provider’s terms and conditions only allow you to access the content, you executor risks breaching the law if they access the data without your permission.
The types of digital assets that can be inherited
account permanently deleted on death or to appoint a ‘legacy contact’ to control the account when it is memorialised. Legacy contact cannot log in, remove or change past posts, read sent messages or remove friends.”
Valuing digital assets
Digital assets are valued in the same way as traditional assets such as property and vehicles. Executors of a Will need to obtain the closing balance of any online accounts that contain or manage money. Computer hardware and content (that is not prohibited from being a digital asset by its licence) may require a valuation expert to obtain evidence of how much it is worth. Digitally created work such as blogs, artwork and apps may attract value via intellectual property rights. Separate legacy clauses should be included in the Will to cover these types of assets, and a ‘digital executor’ may need to be appointed.
A ‘digital executor’ is likely to be someone who is confident in the law surrounding their ability to access digital content, as well as value it. Appointing a ‘digital executor’ is particularly useful if you, as the testator, want to limit who will have access to content contained in the digital assets.
Practical tips for protecting digital assets for the purposes of including them in your Will
This is a very new area of law, and until Parliament provides certainty through legislation, each service provider can make their own rules on how your digital content will be dealt with on the event of your death.
There are certain steps you can take to protect your digital assets and have as much control as possible over them when you die. These include:
- Create a list of digital assets (as mentioned above).
- Familiarise yourself with the terms and conditions of service agreements to see what will happen to your online accounts and their content upon your death. This will help you establish whether this is a digital asset capable of being passed on to your loved ones.
- Ensure your executors are aware of your wishes when it comes to memorialising social media accounts which provide such rights.
- Include any digital assets of sentimental value in a personal chattels clause within your Will.
Final words
The digital revolution has changed our lives beyond recognition, and the law is rapidly trying to play catch-up in a sector which is constantly changing. Until the law around digital assets is clarified through legislation, it is crucial to seek expert legal advice when drafting your Will to make sure any valuable (whether personally or monetary) digital assets are dealt with according to your wishes.
Saracens Solicitors is a multi-service law firm based opposite Marble Arch on the North side of Hyde Park in London. We have years of experience in advising individuals on Wills and estate planning. For more information, please call our office on 020 3588 3500.
[1] http://www.uniformlaws.org/shared/docs/Fiduciary%20Access%20to%20Digital%20Assets/2015_RUFADAA_Final%20Act_2016mar8.pdf