When we consider what assets we have, we usually think first of the physical possessions we own; a house, a car, perhaps some antique objects. But with more and more reliance on digital technology to create and store our assets, we should make sure to include them in our estate planning. If you pass away or lose your mental capacity, would anyone be able to access your digital assets?
We share below some steps you can take now to allow for the future transfer of your digital assets and avoid losing this content permanently.
What is a Digital Asset?
There is no clear legal definition of a digital asset, but it can be understood as any content about you or created by you that is stored in digital form, whether online or on a personal electronic device, and which is able to be accessed by you. Digital assets are intangible personal property such as online accounts, emails, digital photos, virtual currency, gaming avatars, or domain names. They can also take the form of contractual rights which you acquire when you sign up for a service, such as an iTunes account, although some of these are held simply as licences that have no value on death.
Can you transfer your Digital Assets?
Tangible personal property can be physically transferred to an attorney or personal representative. The ownership rights associated with intangible personal property may also be transferred. However, digital contractual rights can be challenging to transfer and many internet service providers (ISPs) prohibit their transfer in their terms of use or licence agreements. Examples of digital assets that cannot be transferred to others include those held in accounts with Apple and Amazon. Some companies allow accounts to be transferred only with their written permission, including PayPal and Facebook. The virtual currency Bitcoin, on the other hand, allows account holders to transfer their digital assets as long as the recipient knows the password.
It is vital, therefore, you fully check and understand the ISPs terms before accepting them, rather than just clicking ‘OK’.
How can others access your Digital Assets?
Accessing the digital assets of those who lack capacity or are deceased can prove difficult. This is because although you may have given verbal permission for others to access your content, if you lose capacity or die, many companies won’t accept this. Further they may even consider such access as a breach of privacy and of their regulations, and will lock the account. It is therefore always best to check a company’s terms of use before asking someone to access your digital assets or before you access a digital asset on behalf of someone else.
What practical steps can you take to protect your Digital Assets?
A practical first step may be to make a list of all the digital assets you believe you possess and to include your username / login details and any other information which would allow access to your digital assets. You should not include your passwords which you should keep separately for security, making sure to keep this information safe. It is a good idea to keep a hard copy of this information, to save it to an external hard drive not connected to your home or work network and to regularly update the list. Login information should not be included in your Lasting Powers of Attorney or your Will.
Check the ISPs terms first, however, as you may find simply writing down your login details may be a breach of their terms.
Providing for your incapacity
A Lasting Power of Attorney can give one or several attorneys the authorisation to deal with your property in the event of your incapacity (or sooner, if you prefer). It should be drafted to specifically include the ability to access, control, delete or transfer your digital assets, where permissible. This will help to ensure that access to this information is not lost or suspended in this time.
Bear in mind that a Lasting Power of Attorney may not be recognised in relation to assets that are held under the terms of ISPs who are based outside of the UK.
Providing for your death
Your Will should be drafted to include your digital assets. This can be covered by leaving a gift of digital assets (suitably defined) to be dealt with according to a separate letter of wishes which can be updated as the assets change over the years. This can give clear instructions for your personal representatives, helping them to comprehend which accounts are important or give them the valuable information needed for those accounts.
Appointing a ‘digital executor’ who specialises in technology may, in some cases, also be useful, if you consider your digital assets to be complex, but is not always needed.
How can we help?
Our national Private Wealth team can provide expert advice and assistance with estate planning, including drafting Wills and Powers of Attorney to protect your digital assets.
Published: 26 June 2018
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