Death in the Digital Age

Jun 8, 2018 | Wills and Probate

The world is becoming more digitised and inter-connected as information and communication becomes more accessible and simpler to manage. Platforms such as Facebook, Twitter, Instagram, WhatsApp and iTunes, amongst others, allow us to access, share and store messages, images and music at the click of a button. But what happens to these ‘digital assets,’ when you are no longer around?

What is the problem?

It is a common misconception that digital assets are owned by the user. This is often not the case. When using online services or programs we normally agree to certain terms and conditions that give us the use of a service but no more. For example, certain social media sites state in their terms of use that they own the content you upload and not you. Some service user agreements set out what will happen to the user’s account on death, but they are normally silent on such matters.

Even if you do have ownership of the assets, for example photographs stored on a laptop, it may not be quick or simple for others to access these. Frequently the service provider will not permit third parties, such as your family, to access this data. Many service platforms also state in their terms and conditions that usernames, passwords and other codes are not to be disclosed on the grounds of confidentiality.

Case StudyIn late 2017 Jitendra passed away. He did not leave a Will. About two years before he died his family had bought him an iPad. He had used this to store pictures and videos of his youngest grandson, Nilesh, who had unfortunately been ill with motor neurone disease all his life and who had died in 2016 aged just 11. These pictures and videos meant a lot to Jitendra and now his widow, Laxmi, wishes to view these in memory of her late husband and grandson. Unfortunately she does not have the Apple ID or passcode. She speaks with her son-in-law, an IT consultant, who mentions that she may need to obtain Probate to access the data. Laxmi then rings the Apple support line who explain to her that she needs to apply for a Court Order to access the data as her husband did not leave a Will specifically gifting his personal assets to her. Laxmi is not alone in facing this predicament.

Names have been anonymised

 

There have been some developments in recent years. For example Facebook, on the death of a user, may allow the user’s Executors to access the profile and memorialise it. Nonetheless family members still regularly encounter problems in accessing and preserving a loved one’s data.

What is the Solution? 

  1. Consider which digital assets you want to preserve or pass on to a beneficiary.
  2. Review any terms of use you would have signed up to and ascertain whether they state what happens on death.
  3. Store any documents, files or photographs that are only held digitally on to an external hard drive.
  4. Make a Will or update your existing Will with a specific clause dealing with your digital assets, and review this regularly to ensure it is kept up-to-date.
  5. Consider keeping a list of usernames and passwords in a secure location with instructions (maybe in your Will) as to how the list can be accessed.

This is a developing area of the law and there is no one size-fits-all approach. Vyman Solicitors can advise you on how you would like your digital assets to pass on your death and how this can be set out in your Will.

E-mail us on: info@vyman.co.uk

Call us on: 0208 427 9080