Digital assets and Wills #SolicitorChat with The Law Society.

Technology is a huge part of modern life and our digital assets include everything from photos to online banking and email accounts. A survey commissioned by the Law Society found that 93% of those who have a will have not included their digital assets.

But what are considered digital assets? And how can a solicitor help you to plan your digital legacy? Beth Johnson discussed this and more live on Twitter this morning during #SolicitorChat.

Join The Law Society and other firms discussing on Thursday mornings 0900-1000.

What are considered ‘digital assets’?

Digital assets have not yet been legally defined but they are seen as those things that we associate with being ‘online’. Some digital assets we interact with every day, such as our email and social media accounts. Then there are those digital assets that have a clear monetary value such as bitcoin or online investments and bank accounts. Can also include business and individual websites and domain names.

Everything is now shifting online and the COVID-19 pandemic has accelerated this with the majority of the population now working from home. Even our children are being pushed towards the online world with school work being accessed remotely. The amount of digital assets we are exposed to and interacting with is increasing each day as the demand levels grow.

This shift online is also seen with people storing more of their work on electronic devices. For example authors drafting a book or an article on their computer create a digital asset by doing so. Then, on a more personal level, if you were to write an online journal or have a blog, these are also considered digital assets.

Digital assets can also result from our hobbies, such as online games like World of Warcraft. Although I am not an expert myself in this online world, those involved spend large amounts of time accumulating gold within the game. This itself has a value attached and is seen as a digital asset sought after by others within that gaming community.

Another online aspect are social media influencers on Instagram, Facebook or Tiktok. Influencers can establish thousands if not millions of followers and build an income from their social media accounts. These accounts held can be considered a digital asset, and in some cases very valuable.

What are the key issues relatives face when trying to deal with a deceased loved one’s digital assets?

Accessing digital assets can be seen as straightforward as most people have a computer or laptop that holds the majority of their digital assets. The deceased then leaves their electronic device to their loved ones under their Will so they can access their digital assets. Done.

This is not actually the case, especially due to the added security we carry out to avoid cyber attacks or fraud being committed on accounts. As a result we set complex passwords, memorable words and even facial recognition to eliminate these cyber threats. Loved ones therefore face barriers to accessing digital assets of the deceased if they do not know these details.

There is also the fact that, as mentioned, most people do not consider their digital assets when drafting their Will and selecting the executors to administer their estate. As a result, even if the executors have the power to manage digital assets they may not have knowledge of what digital assets there are, or they may lack the relevant skills to manage them. Imagine if you had a valuable bitcoin holding and due to these issues it lost value or was not even located on your death? Not only would the value be lost, but it results in a lot of time and stress for those executors who are administering the estate.

How can someone include digital assets in their will?

There are several ways in which you can ensure that digital assets are included in your Will. Firstly you can extend the definition of your personal property so it is not limited to tangible assets. You can also incorporate a specific digital assets clause that makes it clear that your executors can and should administer all the digital assets you hold.

This links with the point I previously made about ensuring the appointed executors have the knowledge and skill to deal with your digital assets. There is the option to appoint separate executors within your Will to specifically manage your digital assets. There is normally one tech whizz in each family who is dragged downstairs in the event that the TV screen turns blue or is frozen on Boris Johnson’s face mid lockdown announcement. Why not consider delegating the management of digital assets to those more capable of doing so?

What happens to your online subscriptions and digital downloads after you die?

If you have online subscriptions linked to your bank accounts when you die, for example through monthly payments, these are cancelled during the administration of your estate. Whereas any subscriptions that do not have this payment attached to them continue to exist. What happens to them depends on the organisation the subscription is held with. For example a Facebook account is a subscription and they provide two options in the event of an account holder’s death. The account can either be memorialised or permanently deleted. The management of this is to be done by an appointed ‘legacy contact’. This is a prime example of why consideration should be made throughout your life as to what will happen to your digital assets on your death. There are a range of things you can do to ensure your subscriptions are dealt with in accordance with your wishes.

What happens to your digital downloads is different as you held them yourself and not within a subscription. Downloads, such as photos or documents may have sentimental value attached to them by your loved ones. Therefore unless they are provided with the required information to access them they are effectively lost over time.

How can a solicitor help you plan your digital legacy?

A solicitor can ensure that digital assets are included in your estate and pass under the terms of your Will. This can be done through extending the definition of your personal property or by including a specific clause referring to digital assets.

One important aspect to consider is that digital assets are forever changing. Just like we are making more amazon purchases each day in lockdown, we are also expanding our digital assets as both our businesses and personal lives are morphing online.

It is therefore a good idea to attach a side letter or list to your Will outlining your digital assets. This should be updated often to ensure that your executors have the details required to access and manage your digital assets. The exact form and content of this side letter and your Will is something that a solicitor can assist with drafting. This will ensure none of your digital assets are lost to ‘the cloud’ or the vast and never ending ‘world wide web’.

If you require any further information on Digital Assets, please do not hesitate to contact our Private Wealth team.

The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this article. © Mundays LLP


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