Protect your digital assets after death - Alison Reid

Great importance is placed on getting a will drawn up, or ensuring your power of attorney is up to date, but making plans for what happens to your digital assets once you’ve passed away, or become incapacitated, is often overlooked.

Alison Reid is an Associate at Wright, Johnston & Mackenzie LLP
Alison Reid is an Associate at Wright, Johnston & Mackenzie LLP

We tend to think in terms of traditional assets which have monetary value such as bank accounts and properties when making a will. Many are not yet aware that steps can also be taken to nominate an individual to deal with your digital assets in these circumstances.

Professional body, STEP, recently launched a new campaign, encouraging members of the public to protect their “digital memories” by making future plans for their digital assets.

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It makes a lot of sense considering so many of us live a great deal of our lives online, but the vast majority of people in the UK fail to think about their digital footprint upon death.

Many of us live a great deal of our lives online, but don’t consider the steps needed to protect ‘digital memories’ upon our death

What exactly is a “digital asset”? Simply, they are assets held in a digital format. They can have monetary value such as cryptocurrency, non-fungible tokens or a balance in a PayPal account. Domain names are often valuable assets. These are all assets capable of being owned and therefore, left as a legacy in a will.

There is a raft of other “assets” held in digital form which have sentimental value. They can be anything from an email account, social media accounts, images on a smart phone, tablet or cloud or a downloaded collection of music or books.

People don’t often realise that most types of digital assets aren’t actually owned by them. The service user only has a licence to use the product. While these assets cannot be left as a legacy, it does not mean that you cannot make provision for what should happen to these accounts on your death. It is however, important to check the terms and conditions attached to these accounts to see what is possible.

When someone passes away, if they haven’t made it clear what is to happen to their digital footprint, it is these terms and conditions which apply, and they do not often permit access in the absence of express instructions.

There have been several high-profile cases where great difficulties have been encountered in trying to access loved ones’ digital assets after they have died. Many internet service providers are based in the US and they will often insist that a court order is obtained from a US court before they will recognise it. This is simply not feasible for the majority of us. In many cases assets are lost forever.

Because of the dynamic, multinational nature of the digital world, the law has simply been unable to keep up.

So if you do not make plans for your digital assets, trying to access them on your death can be incredibly distressing, time-consuming, and costly for your family. It’s important to take this into consideration and start planning sooner rather than later.

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People may think the answer is simply to share passwords with their loved ones, but this can often be in breach of the service provider’s terms and conditions, and is not recommended in case of potential privacy and data protection issues.

Some of the larger online platforms such as Meta, Apple and Google, now offer legacy settings which enable users to nominate a third party to gain access to or manage their accounts after their death. Many are still unaware of these settings, but they are incredibly useful, and I would urge anyone who wants to protect the future of their digital assets to take advantage of this function as an important first step.

My advice would be to make a comprehensive list of all digital assets and use legacy settings wherever possible to nominate a third party to be able to access your accounts in your absence. It’s important to discuss this with your loved ones and explain the steps you’ve taken, and how you’d like them to use your accounts in future, should they ever need to gain access.

A solicitor will be able to guide you through the process of putting these wishes into writing, so there is clear evidence of your intentions, which should help to unlock these precious assets for your loved ones.

Alison Reid is an Associate at Wright, Johnston & Mackenzie LLP



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