Digital Assets - Life (and Death!) in the Technological Age

Digital Assets - Life (and Death!) in the Technological Age

As crazy as it sounds, dying is now more complicated. Maybe not for the deceased, but it is certainly more complicated for those people tasked with dealing with and distributing the deceased's Estate, the Executors or Personal Representatives. This is because lots of us nowadays don't just own actual assets, we all own digital assets too, and this has made life (and death) a whole deal more complex for those people administering Estates.

Think for a minute about what you have stored online… Some things are obvious – photos, music, videos. Anything else? What about all those online loyalty schemes, Amazon, Ebay and YouTube accounts. Then there are presentations, business plans, research, essays, CVs, application forms… When you think about it you might have over 20 years of information in various sources online.

But what's the value of these digital assets? Some will have little or no value, but some items, in particular photos and videos may have huge sentimental value as they will charter large portions of your life and the lives of your friends and family – you would never want to lose those, would you?

But wait a minute – do you own them? Yes, you owned them originally before they were put online but do you own them now, and if you die, can someone get access to them on your behalf? The answer may not be as straightforward as you hope, because legally much of what you have uploaded online may be classed as "information" rather than as "property" so will not have property rights associated with it. Under Section 3 of the Wills Act only property owned at the date of death can be lawfully disposed of under a Will, so what about the other things that aren't property and are just "information" – who owns them at death? Unfortunately in most cases not you, and therefore not your Executors or Personal Representatives.

If you ask the social networking sites or email providers they will refer to the user agreement you signed when opening the account, and in most cases access to these accounts will be terminated when you die. We all signed user agreements in those terms; none of us thought about it at the time, and none of us really thought about the implications. There is no uniform law therefore each company sets its own rules. Most companies require survivors to write a letter sending proof of death to request access to a deceased's account, but this is still discretionary and there's no guarantee or right to access.

For some families dealing with the implications has caused immeasurable heartache and despair. Consider just some of the recent cases which have hit the headlines – 15-year-old Eric Rash who took his own life, and whose parents were asked by the local police to go into his Facebook account to see if there might be clues to what led to his suicide. Facebook denied the parents' request. Or the case of Louise Palmer, who died from a brain tumour and whose mother wasn't allowed access to her account after she died, despite the fact that this was Louise's later wish because she had signed the user agreement right at the start. Or Susan Rowan who was subjected to an endless and upsetting series of phone-calls and web chats with Skype in a futile attempt to recover the credit held on her late husband's account.

So what can we do? Many large companies are ceding to public pressure and changing the way they operate. In July 2015 Facebook unveiled a legacy feature in the UK and in April 2015 Google confirmed it would simplify retrieval of digital assets after death, but there is still no uniform approach.

We recommend creating an inventory of all online assets and passwords and placing this in a sealed envelope with your Will, making sure to update this regularly. Back up and copy all photos etc. onto a separate hard-drive and take steps now to find out the policies of those companies which hold your digital assets so you can take steps to move these accounts where necessary. Finally, make sure those people in charge of collecting and distributing your assets after your death – your Executors or Personal Representatives – are aware of all your digital property so they can follow your wishes.

At the next series of Clapham & Collinge Briefings we will be looking at the impact that technology has on our lives and after death. The dates of these are as follows:

  • Tuesday 20th October 2015 8.15 – 9.30am at Q's Bistro, 2 Quaker Lane, Fakenham
  • Wednesday 21st October 2015 – 1.00pm – 2.15pm at The Beechwood Hotel, 20 Cromer Road, North Walsham
  • Thursday 22nd October 2015 – 1.00pm – 2.15pm at Oddfellows Hall, 4 Lifeboat Plain, Sheringham

For more information, or to book your place at one of our briefings, click here or contact Louis Hilldrup-Boorman on 01603 693579, or email lhb@clapham-collinge.co.uk