Creating an estate plan allows you to plan your future, specifying what should happen to your financial affairs and assets on your death. Among other things, an estate plan gives you peace of mind as you go about your life, knowing the management of your financial affairs and assets will transition to the right hands once you are no longer available to call the shots. A well considered estate plan protects your loved ones, enabling them to access your assets without lengthy Court disputes or Court battles.
But have you thought about digital assets in your estate planning?
We are living in a digital era and people continue to accumulate valuable digital assets over time. Some have monetary value, such as funds in a PayPal account, while others have sentimental value like photos stored on an online storage platform. Or you may have some highly private digital assets that you wouldn’t want another person accessing and would rather they be discarded confidentially.
What Are Digital Assets?
Digital assets refer to records stored digitally, which you control or have a license to use. There are various categories of digital assets, some of which should be included in your estate plan. Generally speaking, if a digital asset has some value – monetary or sentimental – it’s worth including in your estate plan. For instance, assets with financial value may include cryptocurrency, monetised blogs and income-generating websites, etc. On the other hand, examples of assets with sentimental value may consist of social media content, personal blogs, digital photos and so on.
Here is a detailed list of common examples of digital assets that we help people address in their estate planning:
- Email accounts – Gmail, Yahoo, Outlook.
- Social media accounts – Facebook, Instagram, Twitter, Pinterest.
- Subscriptions – Netflix, Amazon Prime, Apple Music, Spotify, Audible.
- Chat Rooms or boards – Neighbourhood boards, professional boards, reading boards.
- Marketplace accounts – eBay, Amazon, Etsy.
- Photos – Cloud or computer.
- Books, music, or video – YouTube, iTunes, Vimeo, Amazon.
- Financial accounts – Savings account, credit card, trading account, Paypal, Stripe, cryptocurrency.
- Blogs and websites – Domain name registrars, third-party host.
Access to Online Accounts After Death or Incapacity
Leaving clear instructions about how you want any digital assets to be treated, including accessing information, helps notify your loved ones about the existence of any digital assets, assists in closing accounts more easily and ensures that assets can be passed on to the right person. This is especially important because some providers have terms and conditions or policies that mean even close family members might not be able to access account content or login information after you pass away.
There are some platforms that do not allow for a transfer of ownership. Knowing the exact terms of any digital or online account is essential, to ensure you do not leave instructions that conflict with the policy. For instance, Facebook allows memorialising of your account to continue showing your photos and posts after you die. If you wish for someone to access your account and download the content, you can nominate a legacy contact who will not be able to download content but will be able to control who can post tributes to your page as well as who can see any tributes. Apple accounts allow for a Legacy Contact to be added to your account so that after you die, the person with the allocated access key will have access to your account without having to get a Court order or go through processes that do not ensure the same degree of certainty of access.
As with any asset, providers of online assets have specific policies regarding account operation. The primary reason for these policies is to protect the account from unauthorised access. If you do not provide instructions on what should happen to your digital assets, you risk losing the assets, especially if they are non-transferrable.
To allow access to the online accounts after death or incapacity, you should keep an updated list of the accounts and passwords in line with the respective user agreements. We help our clients with this process. This way, your executor has an easier time distributing or managing the assets in the way you wished them to be managed.
Access & Privacy
For easier access to the digital assets after your death, it is important to include a clause in your will, or a separate document, identifying that there are digital assets included as part of your estate and the action to be taken with each digital asset. For instance, if you’re not comfortable with family members or other people reading your emails, you should leave clear instructions directing the deletion of the account. Or it could be you would like your digital photos printed and given to a particular beneficiary, or you would like to bequeath the photo account to a specific person (if the policy allows transfer). Essentially, the instructions you provide in your will and estate plan should state clearly what should happen to the digital assets and how to access them.
What to Consider
With strict privacy rules limiting access to most digital assets, you need to take deliberate steps to include them into your estate plan and avoid the risk of them being deleted upon your death. As you do this, you should differentiate between digital assets that you can and cannot pass through a will.
At the time of publishing this article, examples of digital assets may be transferred include:
- Funds in an online account such as PayPal
- Digital music and photos
- Virtual currency, e.g. Bitcoin, Ethereum etc.
On the other hand, at the time of publishing this article, digital assets that cannot be transferred include:
- Email and social media accounts
- Subscription accounts such as Netflix
- Non-transferable website domains
Our team provides advice about the dos and don’ts specific to the individual digital assets you wish for others to access, delete or transfer easily upon your passing.
Where To Start With Your Digital Assets
However, writing the passwords on paper raises privacy issues. If the list falls into the wrong hands, it could lead to identity theft, fraud, and other associated risks. To counter this, you might consider investing in a secure password storage tool such as 1Password or Lastpass.
Provide clear instructions concerning the beneficiaries of each of the digital assets. You can further state what you would like them to do with the assets. For instance, do you want them to memorialise your social media account, continue managing a particular digital asset, or shut it down? However, you should always confirm the individual asset’s terms and conditions before giving the instructions.
Digital Estate Planning
Finally, you need to document your digital estate plan by including a clause about it in your will. However, not all of the details should be spelled out in the will. This is because your will becomes public once you die, which can compromise the security and privacy of digital assets.
You should keep the plan in a safe place (preferably with your will) and ensure that your executor knows where they can find it.
Unfortunately, with no clear laws regulating the handling of digital assets, creating a plan that is considered legally enforceable can be a challenging endeavour, particularly as different digital assets have different terms and conditions governing what can happen to the accounts in the event of death.
In the face of these complexities, having an experienced estate planning lawyer guiding you is essential. We can help you identify all the assets you need to include in your digital estate plan; ensure that your digital assets are documented correctly in accordance with existing laws, terms and conditions; and ensure that the appropriate rights are granted so that your beneficiaries can access them after your death.
At DDCS Lawyers, we will provide you with the necessary advice and support you need to ensure that your digital assets are not vulnerable, overlooked or lost to the internet.
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The DDCS Lawyers wills and estate planning team are highly experienced and specialise in helping people document their wishes in relation to digital assets. To discuss your needs, phone our team on (02) 6212 7600 or fill in our contact form and our team will be in touch.