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05th June 2019

The Digital Domain: How to Manage your Online Life in the Event of Incapacity or Death

The issue of how to deal with digital assets has been raising its head with increasing frequency in recent years. There are many articles out there, many of which provide conflicting or confusing advice. So what should you do about your online accounts and records?
The first step is to understand what digital assets are – which isn’t as straightforward as you might think. There is no legal definition in England and Wales of digital assets. The Society for Trust and Estate Practitioners (STEP) says that digital assets are either records contained in digital files, or property rights and interests associated with digital files. It is only the latter which constitute ‘property’ and can form part of a deceased person’s estate.

For example, if you own a laptop, smartphone and tablet all of those items are property and would be classed as ‘personal possessions’ which can be dealt with by an Attorney for Property and Financial Affairs during your lifetime, or by your personal representatives after your death. However, the photos, music and other files stored on those devices may well only be ‘information’ with no associated property rights. This may well mean that your appointed representatives are unable to deal with these files for you. However, if you have for example an unpublished novel or photographs which you planned to sell, there may well be property rights and interests associated with those files which means they qualify as property and can therefore be dealt with by your representatives.

The issue is further complicated by the wide use of ‘cloud based’ services, social media accounts and accessing material (most commonly music) through streaming services which are governed by individual user agreements or licences. These agreements are personal to you and third parties have no authority to take them over or deal with them on your behalf. If for example you have photos and videos stored on Instagram, only you have the right to access that material and if you die or become incapacitated then Instagram has the right to delete all of the content on your profile. The terms and conditions of these accounts can be updated at any time, and so it is important to check what would happen if you were to lose capacity or die.

For many people, their online presence is more of sentimental value than financial, but this doesn’t reduce the importance of preserving records where possible. However, if you have large sums invested in digital currency (bitcoin etc), or if you otherwise have financial value in online platforms, your access to this could have significant financial value and so ensuring your accounts can be operational if something should happen to you is vital financial planning.

Hewitsons have a large team of solicitors experienced in Wills, trusts, tax and estate planning and can advise you on the best way to manage your digital assets in this context. We can advise you on a plan to assist you with managing your digital assets and tailor this to your wider circumstances. For further assistance please contact Jennifer Koch.
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