By Grant Shaw

What on earth are ‘Digital Assets’?

For an increasing number of people, life is lived virtually via their smart phone. They have accounts with Twitter, Instagram, Snapchat, WhatsApp, YouTube, and of course Facebook as well as PayPal and gambling accounts, online banking, E-Bay, shopping apps, subscription services like Netflix and online music providers and several email accounts not to mention ‘crypto-currencies’ like Bitcoin which exist only online.

How to deal with these ‘digital assets’ when someone dies is becoming more of an issue and is complicated by the fact that in many cases the company providing the service is not UK-based and your executors may be left relying on a small paragraph in the huge ‘users agreement’ which you (and everyone else) didn’t read when you signed up to the service.

Even if the service provider is UK-based, there is very little UK law dealing with digital assets. The present laws of inheritance were not written with advances in technology in mind and only really deal with physical assets and property.

Facebook

As part of Facebook’s terms and conditions, users are not allowed to share their usernames and passwords, let anyone else access their account or transfer their account to anyone else. Facebook offers a service to ‘memorialise’ accounts, which allows friends and family to share memories after a user has died, leaving the account available for people known to the deceased to see but it will not come up in public searches. They also recently introduced the ability to name a ‘Legacy Contact’ for your account; this is a trusted friend who can access the account after your death.

Instagram

If a user dies their relatives should contact Instagram to request either the deactivation and deletion of their account or, similar to Facebook, to ‘memorialise’ the account.

Twitter

Twitter’s policy is never to give access to anyone else, regardless of their relationship to the deceased. They require persons who are authorised to act on behalf of the deceased, such as an executor, to contact them to remove or deactivate the deceased person’s account.

Google

Google offers many online services, including email, photo hosting and document hosting. All of these can be accessed with one Google account. They have an ‘Inactive Account Manager’ programme, where people can set out what happens to all their digital information and who should have access to it after the account holder has died. Google encourages users to set out their wishes, similar to that in a will. YouTube is now part of Google, so the same rules apply to them too.

Apple

Apple do not have a policy on what people should do with their assets on death, and many of Apple’s products are on a subscription or paid service. The iCloud storage system has a ‘No Right of Survivorship’ policy where you agree that your account is non-transferable and any rights to your Apple ID or content within your account will terminate when you die.

Regarding music and films generally, the consumer is usually actually leasing the content and not buying it. Purchasing a film or song through iTunes or similar grants you a licence to use the film or song and as the licence is non-transferable, anything in your library is also non-transferable.

PayPal

PayPal is Luxembourg registered but they do have a UK address. To access the account of a deceased person, you need a death certificate, grant of probate and photo ID.

Online gambling

Any winnings usually stay in the gambling account until the user requests it to be transferred to their bank. Very often it can only be transferred to the original bank account (which is a problem if this has already been closed as part of the probate process).

Online businesses

If you run one, you should consider what you want to happen to it after your death and make appropriate arrangements for access by some trusted person at that time. If the business will be ongoing you will need to consider providing details of how to access and pay in finance to enable it to keep trading.

Cryptocurrencies

These are payment networks which allow instant peer to peer transactions – effectively a new form of money. However they are not regulated by a controlling company or central bank and are free from government regulation. Accessing the cryptocurrency assets of someone who has died can be difficult and sometimes impossible if the owner has not made appropriate arrangements to pass on access details after their death.

Passwords

In the UK executors may well be contravening the Computer Misuse Act 1990 if they access online data even if they are using passwords provided by the deceased person, as the law has not yet caught up with the way we use digital assets. The terms of each individual provider’s service agreement need to be checked before doing so. The Computer Misuse Act would prohibit (for example) executors withdrawing money after death using a bank card and paying out to those entitled to it – even if the deceased gave them his/her pin number – unless they go through the bank’s bereavement procedure (including obtaining a Grant of Probate if necessary).

What should I do?

If this encourages you to look at your ‘digital assets’ and decide what you want to do with them when you die then it will have served its purpose. You should check the ‘user agreements’ to see each provider’s policy on death or at least leave a list of digital assets and relevant information in a sealed envelope for your executors to use when you have died. We will be happy to try to answer any questions you might have on this rapidly developing area of the Law.

The above is provided for information purposes only and is not to be construed as ‘legal advice’.


27th June, 2019