This post was written by Rebekah Moore Trainee Solicitor
Have you ever thought about what happens to your online accounts and digital assets after you die? Ensure that you make provision for your digital assets when estate planning and that your legatees won’t get bitten by the law.
Digital assets are anything that you own or have rights to that exist online or on electronic storage devices, ranging from the standard online bank accounts, social media accounts and photos stored digitally to the more obscure such as bitcoin and online gaming accounts.
While it is generally accepted that digital accounts are likely to have more sentimental than financial value, the fact remains that this emerging phenomenon is an area of law that will foster new challenges. It will most certainly alter horizons for Wills & Probate solicitors of the universal digital generation.
We wouldn’t leave home with the front door unlocked, but many of us don’t consider protecting our digital assets. As technology has evolved, so have the assets that we value.
What is the big deal?
In the UK alone, a leading Accountants estimate the value of digital assets at £25 billion, a figure which is set to grow exponentially. I myself, possess a kindle library jam packed with books as well as an iTunes collection teeming with music and at the fresh-faced age of 25 I imagine I will add many more books and songs before I become brown bread.
UK case law pertaining to the transfer of digital assets is bewildering, simply because of its absence. The gap is remarkable when compared to the US, where various cases and legislative developments have begun to address the issue. The irony of the situation is that a substantial number of our contracts with online accounts are channelled towards, and generated by, US companies and US legislation.
What if I make a will?
The construction of a personal will, crucial in its own right, can assume complex dimensions in relation to digital accounts.
In April 2014, the Law Society of England & Wales urged people to leave clear instructions about what should happen to their digital assets after death. The working group advise that we should all have a will and include provisions for digital assets to ensure that our wishes are carried out after death. It is important to make a digital directory that contains details of all of your online assets, social media accounts, logins and passwords, and most importantly to keep it updated.
Bitcoin and Bristol Pounds bewilderment
What would you say if someone told you that you had a potentially valuable asset that would vanish upon your death? Our most valuable assets have evolved from our grandmother’s jewellery and antique cars to our digital assets which can sometimes be more valuable than anything else.
Bitcoin, (not to be confused with the Bristol Pound) is a term that could feature prominently in our future vocabulary. It is a virtual currency which HMRC have recognised and treat as a foreign currency for corporation and income tax purposes. It can be bought, sold and transferred. Without adequate provision for it in your will, you could possibly lose your estate money. The credibility factor with the currency is that the city of Bristol has an ATM currency dispensing machine in Stokes Croft and six shops who readily accept the currency, including Divino Deli in Clifton.
An integral part of our digital world, and one that could almost qualify for obsessive status is the online games arena, one that, incidentally, is not solely peopled by teenagers. “World of Warcraft” one such gamers account, sold in the US for £5,000, and in 2009 a runescape account (a fantasy massively multiplayer online role-playing game) sold for a staggering £46,000 on eBay.
Points mean prizes
On a more candid prospective, small amounts of money in differing online accounts might well be overlooked if these are not documented. These could include lottery accounts, Pay Pal, online shopping accounts and any of the numerous online gambling accounts available.
Frequent flyer miles, club card points, your hyper organised iTunes library, can we pass these on to our loved ones in our will? You might be in for quite a surprise here?! You may not actually own many of your digital assets. A sobering example is that the iTunes collection that you have so lovingly nurtured over many years is not owned by you at all but merely “borrowed” until your death, you are merely granted an End User Licence.This was vividly illustrated when one Bruce Willis attempted, unsuccessfully, to negotiate a way of leaving his extensive musical collection to his children.
The ability to transfer assets does, however, vary from company to company. The enigmatic Richard Branson’s Virgin Atlantic flying club allow transfers on the presentation of a death certificate and nominated beneficiary and US Airways allow you to transfer dividend miles free of charge within a year of the member’s death. Did you know you can also transfer your Tesco Clubcard points and your Nectar points too? (Every little helps)
What about your social media accounts?
FACEBOOK - Two options are available in the UK, currently. Either the account can be deleted or it can be 'memorialised' so that only existing friends can see the profile. These require proof of death and can be requested only by someone who can prove that they have authority to act on behalf of the deceased.
TWITTER - They can work with a person authorised to act on the behalf of the estate, or with a verified immediate family member of the deceased, to have an account deactivated. Twitter advise that for privacy reasons they are not able to provide access to a deceased user’s account regardless of their relationship to the deceased.
INSTAGRAM – Unlike FaceBook, Twitter and Instagram doesn’t readily reveal what happens to the account of a deceased user. They offer instructions on how to contact them about a deceased user. If your heirs had the username and password, they could presumably take control of the account as well, but this would require advance planning.
Repetition of salient points turns nettles into roses so let’s repeat what is steadfast advice.
It is good practice, oh heck, it’s much more than that, it’s essential in bequeathing your digital assets to impose your own brand of self-discipline in the shape of constructing a digital asset inventory. Although, in order to ensure that this operation does not become a self-help guide for those with elastic consciences, take all the necessary steps to make this inventory fool proof.
Never, EVER, put usernames and passwords in your will as this will ultimately become a publicly accessible document in probate but, leaving a list of your digital assets with usernames in a sealed envelope along with your will may make it easier for family and friends to inherit your digital legacy. Did you know that, if you haven’t done so your heirs could be in breach of the Computer Misuse Act 1990, by accessing online accounts without formal written permission?
In this constantly evolving digital age, ensure you give your digital assets consideration when estate planning.
Avoid fang marks at all costs.