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Published: 22 February 2019
Author: Nadine Scarlett
Our digital presence is rapidly increasing and with it our intangible, but real, digital wealth, creating growing complexities when making a Will.
Law reform in this area is necessary. But while we wait for the law to play catch-up, what can we do to make sure these digital assets are protected?
In this blog, I examine how you can undertake effective digital estate planning.
Gone are the days where our asset pool was limited to the physical such as a house, money in the bank, and our personal items. In these modern times, our digital assets increasingly represent a significant proportion of our estate, far greater than most may realise.
Technological developments are fast outpacing the legislative process and at present, the law gives little guidance as to how these digital assets should be dealt with in the event of incapacity or death.
With nine in ten Australians presently holding a social media account, most of us possess some form of digital wealth worth considering when estate planning. However, the unique nature of digital assets may mean dealing with them may not be straight forward. In the course of administering your estate, your executor will need to consider and access any digital assets you may have. Likewise, your attorney during your life may need to do the same.
Therefore, it’s important to consider your digital assets as part of comprehensive estate planning and to develop a strategy that assists your Executor or Attorney in seeing out your wishes when the time comes.
For the purposes of this article, we will refer to Attorneys and Executors as “Representatives”.
The term “digital asset” refers, but is not limited to:
Digital assets can have varying value, be it personal, sentimental and/or financial. It’s important to consider whether they are worth preserving and how.
Some digital assets, such as those connected to a business including domain names, blogs or intellectual property, may have commercial value and therefore carry real financial worth. As an example, if a business relies on email, the absence of timely access or denial of access to those emails could be detrimental to the business and even result in financial loss.
Consider also social media influencers and professional YouTubers. If they generate income from advertising, then their account may hold financial value. Proper estate planning would ensure this value doesn’t extinguish upon the death of the account holder.
However, not all digital assets will have marketable worth. Some may be purely sentimental in value, although valuable nonetheless. While you may not have given any thought to what happens to all your Instagram photos or Spotify playlists once you’re gone, your loved ones may wish to hold on to them for sentimental reasons. Photos, videos and music stored electronically can often be lost if your representative is not empowered to access and deal with them.
We also must not forget the library of personal information (such as financial documents, utility bills, health records, etc), business related information and contacts, or other important data that is often stored in emails, cloud services and digital storage devices. In order to fulfil their legal and fiduciary duties, your representative will likely require access to this information. Timely access can be crucial to ensuring private information that may be sensitive is secure and safe from any security risk or identity theft. Appropriate access will also enable your representative to assess and prevent any risk of financial loss.
The answer is that it depends on how you have prepared for this event. Social media sites such as Instagram, LinkedIn and Facebook each have procedures setting out how an account is dealt with upon death.
Facebook’s default process is to memorialise the account upon notification of the account holder’s passing. The word “Remembering” appears before the deceased’s name, no one can log in to their account, and their profile remains available for their existing audience to view and share memories. Without the nomination of a “legacy contact”, which can be done through your Facebook settings, an account cannot be accessed or changed.
If you intend your account to be deleted after your passing, or for a representative to have access to your account and its contents, then specific steps must be taken beforehand.
Like Facebook, all service providers including cloud storage providers, social media sites and email providers have their own Terms of Service that we must contend with when estate planning. Some terms will contain prohibitions on transfer or may automatically terminate upon the death of the account holder.
iCloud’s terms provide that not only is an account non-transferrable, but any rights to the account and its content will terminate upon death. The result of this can be disastrous, particularly where an email or cloud storage account containing important data is terminated and permanently lost. Terms such as these can prove difficult to navigate when estate planning, particularly where the service terms prohibit the sharing of login details.
It’s easy to see why measures must be put in place to ensure representatives are authorised and capable of dealing with digital assets and that they are aware of your wishes as to how they should be dealt with. However, simply including a clause in your Will to account for these directions may not be enough. To effectively plan for these assets, the provisions in the Will must be drawn in contemplation of the limitations and restrictions imposed by service agreements and providers.
Even then, from a practical perspective and in the absence of usernames and passwords, representatives are often handicapped in dealing with digital assets despite what the Will might say. This can result in lengthy delays whilst the representative applies to the provider for access. In the event access cannot be obtained, a court order may be required which can be a difficult and costly process.
While Australia has yet to have any specific legislation addressing succession planning for digital assets, there are a number of steps that can be taken to safeguard your digital assets in the event of incapacity or death:
The first step is to put measures in place that empower your representative to access, manage and deal with your digital assets.
To enable ease of access, a memorandum to your representative should be drawn listing each digital asset, your username and password, and any specific instructions as to how they should be dealt with.
Due to the sensitive nature of the memorandum, it should be kept in a secure place (i.e. a safe) that you can easily access should passwords need updating. The existence and location of the memorandum should be disclosed to your representative so that they can readily access it when necessary.
As a Will becomes publicly available once probated, usernames and passwords should not be written in the Will.
While this may seem like a dry and onerous task, reading the terms that relate to incapacity and death will help guide how you deal with the asset. Like Facebook’s terms, they may provide you with the option to choose what happens with your account and so you may be able to pre-select the settings accordingly.
On the other hand, where your options are limited, instructions to your representative or even directions in the Will may be required.
Once you have taken a moment to think about what you want to do with your digital assets when you pass on, you’ll need to decide on who is the best person to see those wishes through. Your representative should be someone who is familiar with the types of assets you have and should be savvy enough to maintain, delete, save or transfer files should they be required to do so.
Your Will and Power of Attorney should empower your representative to access, use, manage, deal and distribute your digital assets as required. To achieve this, specific provisions expressly authorising your representatives should be contained in your Will and Power of Attorney.
Your Will may also include explicit instructions as to how you want your digital assets to be dealt with. These provisions require careful drafting and should include appropriate definitions. As an example, a gift of digital assets should also ensure that any related financial assets, such as bank account balances or investments, do not carry with the gift unless it is intended to do so.
In this way, caution must be taken in Will drafting and the advice of a lawyer sought.
For more information on the complexity of Will making and the pitfalls of home-made Wills, see our article “The dangers of DIY Will Kits and homemade Wills, and how to minimise risks”.
Due to the international nature of digital assets, it is also important to note that terms of service may be governed by an international jurisdiction. Accordingly, your wills and estates lawyer should advise whether you need to consider having a local Will in each jurisdiction.
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