Digital assets and probate

Digital assets are essentially your online accounts and photos. We should all think about what will happen to these after we die.

Here are some practical tips you can follow now, that will enable your executors to access your digital assets in the event of your death. They will also explain what could happen to your assets if no planning is put in place.

1. Review what you have - The first and most important step is to review what assets and information you hold digitally in online accounts. Make a list of logins and passwords for all online accounts and keep these somewhere safe. It is very important that you store this list securely as a hard copy and keep it up to date (consider reviewing it every six months). Alternatively, you could use a commercial password manager as a gateway for all your passwords. You should tell executors about the list and where it is stored but don’t give it to them. Do not give this information to anyone else. In particular, never share PIN numbers or other information relating to a bank account.
   

2. What will happen to your assets if you die without making any plans? - After you have reviewed what digital assets you have, the next step is to clarify what will happen to those assets when you die if you do nothing. For each online account review the terms and conditions you agreed to when creating the account. There may be specific terms on which assets will be administered on death or if there is no activity on an account for a long period of time. Be aware that some internet service providers (ISPs) will permanently destroy your digital assets after a period of inactivity if someone such an executor does not intervene. Consider choosing an account nominee to take over control of certain aspects of your account where the ISP offers this facility. Currently the only ISPs offering this are Facebook (you can nominate a legacy contact), and Google (you can nominate an Inactive Account Manager).
   

3. Memorialising social network accounts - Some social media platforms, such as Facebook, allow the accounts of deceased account holders to be memorialised. Essentially, the account is frozen so that no one can log into it. Only verified friends and family can then see the deceased’s profile or locate it in a search. Friends and family can post comments to the deceased’s page in remembrance of them. Once memorialised an account cannot be accessed or unlocked. If you would like any social media accounts to be memorialised, give written instructions to executors, or your other chosen nominee. Review these instructions regularly. Executors could be instructed to leave a particular message for followers or friends. Consider whether such a message should be posted on personal pages on social media and who should be able to see them.
   

4. Create copies - If you are concerned about your accounts being deleted after a period of inactivity, you may want to print off any photographs and documents or burn to a CD or download onto a USB stick any photographs and documents that are only stored digitally and keep them in a safe place where executors and family can find them. Another option may be to retain downloaded copies of key documents and information on a personally owned device (such as a laptop, tablet or personal computer), rather than storing them solely online. Downloading or keeping copies of assets on an external hard drive or on a USB stick may enable executors to access and print off assets more easily. Some ISPs offer a link to a downloadable file containing everything you have uploaded on an account. This can be a useful way of taking a snapshot of what an account contains.
   

5. Access to devices - Equally important is securing access to your laptops, PCs, mobile phones and any household devices controlled remotely. Executors may need to access information held on your devices to complete tax returns or when administering your estate after you have died. This is particularly important for Apple devices because Apple implements particularly strong safeguards to protect account holders’ data from falling into the wrong hands. This could mean that it is impossible to unlock an Apple device without the log in ID and password even if executors make a request to Apple.
   

6. Photographs and videos  - In most cases, photographs and videos will only be of sentimental value and they may only be of interest to family and friends. Consider whether these assets should be left as part of a general gift of personal possessions or as a gift in your will. In some cases, your photographs or videos may have more than a nominal monetary value so that valuable copyright attaches to them. Any intellectual property rights may need to be the subject of a separate gift in your will with separate executors appointed to administer them. Consider creating hard copy albums of photographs of particular sentimental or monetary value, if necessary, so they are more easily accessible to executors or family on death and are less likely to be lost or destroyed. Consider whether any photographs and videos might cause distress to family members if they are seen. You should consider whether they should be destroyed in your lifetime. Be aware that your executors may not be able to follow instructions to destroy items after death if this could lead to a diminution of the value of the estate and possible legal action by your family. You should consider leaving instructions for your executors about any photographs or videos you would prefer to be kept confidential. However, be aware that those instructions may not be followed.
   

7. Loyalty points - Points on loyalty schemes such as the Tesco Clubcard or Nectar card can mount up. The terms and conditions of some schemes allow these points to be passed on to others after you die either by Will or by written request to the scheme administrator. You should check the terms for each scheme to make sure.
   

8. Emails - Consider whether any sensitive or confidential information is stored in your emails and whether access to these emails by family members after death would cause distress. If so, you should consider deleting sensitive information during your lifetime rather than leaving it to your executors as they may have a duty not to follow instructions about destruction after your death. Consider printing off emails and keeping them in hard copy if they hold valuable content. This may involve consideration of intellectual property issues where the contents have a monetary value rather than a purely sentimental value. If you run your own business you should plan for what will happen to your business emails and other information held online after you have died. This is a vital part of succession planning for your business. Your business emails may need to be handled particularly carefully. Consider who within the business, and apart from your executors, may need to have access to your business email account in the event of your death. If you store sensitive business information online (such as client or contact lists) a hard copy may need to be printed off and retained, or stored on a USB stick in case it is difficult to access the information online after you have died or lost capacity. This may be vital to ensure business continuity. You should discuss what should happen to business email accounts and sensitive business information in the event of your death with your business partners.
   

9. Intellectual property - If any assets you hold online have intellectual property rights attached to them, consider including them in a separate legacy in your Will with separate executors to deal with succession to and exploitation of those rights.
   

10. Crypto-currency - If you hold crypto-currency such as Bitcoin or Ethereum, you should note down details of the public and private keys held in any digital wallets and arrange for the details to be stored securely. You may want to include a specific legacy in your Will to deal with your holdings. This will also help to alert your executors to the existence of the holding so that they can take action after you have died to secure control. If your executors do not have the necessary expertise to administer your crypto-currency, consider appointing separate executors with relevant knowledge and skills to take control of and deal with your holding after you have died.
     
    For more advice on making plans re your digital assets, contact Sandy Kaur and I will be happy to help.