31 Jul 2020

Unless you take positive steps your digital assets could be lost if you die or become incapacitated. If you do nothing else, check that your Will deals with your digital assets and make sure your digital identity is protected so that it cannot be misused after your death.

What are digital assets?

Digital assets are, in effect, anything that is accessed or held online, for example:

  • Social media accounts, such as Facebook, Instagram and Twitter
  • Email accounts
  • Online collections of sentimental value, such as photos, videos, music, a family tree
  • Accounts from which you may earn money, for example a YouTube channel or website or domain name
  • Accounts which have monetary value, such as a bank or PayPal account
  • Loyalty benefits such as air miles
  • Valuable files whether stored on a computer or in the Cloud.

What are the issues?

Digital assets often only exist online, so unless you give the necessary information to your executors or administrators (on your death) or your attorneys or deputy (in the event of you losing mental capacity) they are unlikely to know what digital assets you have and how you want them dealt with in the event that you can no longer access them.

It's not always possible to make gifts of your digital assets in your Will. For example, iCloud, Spotify and Kindle are only licensed to the account holder while they are alive. Apple for example require you to accept their terms and conditions, which include a paragraph which concludes that, unless there is a legal reason to do otherwise, once they learn of your death they will deactivate the Apple ID and delete any and all data.

Some of your data may be stored abroad and therefore subject to the laws of another country. US internet providers, for example, are subject to the Stored Communications Act which extends Fourth Amendment protections against unreasonable search and seizure to data store remotely on computer networks. This may mean that they cannot release data unless they have the consent of the original user or a costly Court Order.

Increased cyber security measures often mean that digital assets are encrypted and even service providers cannot access your accounts without your password. Two factor authentication may require you to be in physical possession of an authorised device to access an account. If you don't have access to the registered devices or don't have the passcodes, you may be locked out entirely. 

Cryptocurrencies present particular difficulties as they generally cannot be backed up and only exist on the device on which they are stored. If the device passcode is lost, then the cryptocurrency will be lost too. It's a bit like losing a physical wallet full of cash. 

Most UK privacy laws only protect living individuals. Once you die, your personal data is no longer protected by the data protection laws. That does not, however, mean that your privacy should be ignored. The identities of deceased individuals are targets for identity theft and financial fraud, which may have an impact on your estate and cause distress to friends and family.

What can you do?

  • Draw up a list of relevant accounts, including the website address and username or ID associated with each. There are a variety of 'password managers' and 'digital lockers' on the market that can store your login credentials in an encrypted digital vault, which a trusted person can access in the event of your death or loss of mental capacity. Check what will happen to each listed item in the event of your death or loss of mental capacity
  • List your wishes for accounts which can't pass under your Will. You may wish for some accounts, particularly social media accounts, to be memorialised, but for all others best practice would be to have the accounts closed down and the data deleted to minimise the risk of identity theft
  • Where applicable, consider choosing one or more trusted contacts to take control of certain aspects of your online accounts. Google, for example, allow you to set up an inactive account manager which is a way for users to share parts of their account data or notify someone if they’ve been inactive for a certain period of time
  • Make a note of the passwords to access your mobile phone, any tablet, PC or laptop
  • In the case of bank accounts for which you don’t receive hard copy statements or other communications make sure you list the name of the bank, your sort code and account number
  • Regularly back up photographs and personal videos to either a hard-disk or an online archive. Some online photo archives allow you to share the archive with family members so then they will still have access to them directly in the event of your death
  • Print key emails so that there is a paper version in case the electronic versions cannot be accessed
  • For Family Trees, it may be possible for a family member to take over a family site, but do not rely on this. You may wish to buy Family Tree software and sync with a family tree on say ancestry.com or heritage.com and then back up to a hard drive
  • Make sure that you store all the relevant information in a safe place known to one or more key family members or friends and make a diary note to keep this up to date
  • If you are a business owner take expert advice. Decide who may need access to ensure business continuity if you die or lose mental capacity and where the hard copies of any sensitive business information should be stored
  • Make sure that your Will is up to date and that your executors have specific powers to deal with digital assets. If you have complex digital assets and you think the people you have appointed as your executors will not have the expertise to deal with these you should consider appointing one or more other people as your digital executors
  • Arrange for a note to be stored with your Will:
    • warning your executors not to include information in any notice of your death that could be used to steal your identity following your death. A death certificate contains all the information a fraudster may need and can be obtained with your full name, dates of birth and death and district in which you died
    • asking that your executors register with the Deceased Preference Service when registering your death. If this is done your details will be shared with organisations including credit reference agencies and financial institutions. They use this information to check new credit applications and existing accounts to detect and prevent fraudulent activity. Registration also results in the deceased person being removed from unsolicited mailings
    • If your house will be unoccupied when you die, asking your executors to arrange a redirection of your mail as soon as possible so that they can advise anyone who sends post to you that you have died.