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08th July 2019

Digital Assets Part 3: After Your Death

Digital assets form part of your estate on death which passes in accordance with the provisions of your Will or the intestacy rules. However, accessing these assets can be difficult, as can finding out they exist in the first place. Valuation can also be tricky if the assets comprise domain names or website content and specialists would need to be instructed to provide a valuation for probate purposes.
There has been a much publicised recent case of a Canadian entrepreneur and founder of a cryptocurrency exchange who died suddenly, taking the passwords for his laptop and access to $135m with him. Even though most people don’t have digital assets which are anything near that valuable, it’s a timely lesson in how not to manage your digital affairs.

Care needs to be taken to ensure that passwords are not shared during your lifetime, and that your personal representatives do not break the law after your death. It is a good idea to keep a secure record of the accounts you have – perhaps as a hard copy list kept with your Will at your solicitor’s office or within a secure digital password keeper. It is also important to ensure your devices themselves can be accessed, so remember to include laptop and phone passwords as well as those for individual accounts.

However, passwords to cloud based accounts should not be included as this is likely to breach the terms and conditions you signed up to when opening the account. Instead, it is worth taking some time to see if you can nominate a ‘legacy contact’ who is able to retrieve information and close the account after your death. This is possible for some social media and email accounts – it’s worth checking your account settings to see if this can be done.

Some internet service providers are reluctant to provide information to relatives after someone has died, particularly if there is no indication of the deceased person’s wishes. There is conflicting case law in America about what should be done to allow post death access which is one reason why this area is so difficult to navigate successfully.

One UK widow who came up against Apple this year (and won) was Rachel Thompson, whose husband died suddenly in 2015. Rachel wanted to access the photos and videos stored on his iPhone so that she could share them with their young daughter as she grew up. Mr Thompson died without making a Will or any provision for his digital assets, and it took four years and a Court order before Mrs Thompson was provided with the files. This case highlights the importance of effective advance planning for your digital assets, to minimise the stress for those left behind.

Another problem which can crop up in the administration of deceased estates is the increasing popularity of heating and other household appliances being managed remotely using wi-fi. When the phone line provider is notified of the death, the account is closed and the connection switched off unless the executors take out a new account. If this occurs during winter, this can lead to problems if heating cannot be maintained to stop pipes freezing and insurance may not pay out if preventative measures (keeping the heating on low) have not been taken.

If you run a business it is important to consider who should have access to your work emails after you have died, and how any commercially sensitive information which may be stored in email accounts should be dealt with. This is a key area of succession planning which should be discussed with any business partners and updated as the business plan evolves.

The management of digital assets and accounts is a complex and quickly evolving area of law which requires careful consideration of your individual circumstances. Hewitsons have a large team of solicitors with relevant expertise to help you understand what your digital assets are and how to manage them in your best interests both during your lifetime and after your death.
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