Posted by Mandy Casavant, Partner
Act now to protect your digital legacy
When dealing with estates when someone dies, we are finding that more and more people are passing away without leaving instructions for their executors or family members to gain access to their online presence. Some assets are also hard to locate.
The modern approach of online accounts, e-statements and the like mean that many assets are ethereal. This can create significant problems for those dealing with the estate who wish to preserve digital ‘assets’ of both monetary and emotional value.
The majority of us are using online content regularly. We upload, download, Tweet, Facebook, Google, Instagram and so on. We need to start thinking about what should happen to our information after we die. Our ‘digital footprint’ is enormous. Our emails, files, photos, films, music, games and social media accounts are a reflection of the person who had them when they are alive.
What you need to do
Making a list of your various digital assets is the first step in deciding what to do post-death (together with the email address / phone number to which each account is linked). Once you’ve listed all the components, you then need to learn what you can and can’t leave behind. Some items are non-transferable and some platforms have strict guidelines regarding what happens after the death of a user.
As well as dictating what should and shouldn’t be accessed, you also need to leave clear instructions as to who can access what and, if necessary, for what purposes. You may wish to appoint separate executors to deal with such issues, who may or may not be the same people dealing with your tangible assets such as property, investments, online accounts with financial balances, and bank accounts. For example, some would be happy for their best friend to access their social media accounts, but would not want their parents to do so.
Caution should be taken in providing passwords or PIN numbers to access accounts after death as such an act could constitute a criminal offence under the Computer Misuse Act.
You can set out in your schedule how you wish the account to be managed (i.e. closed, memorialised or deactivated). Whilst these wishes will not be legally binding, they will provide guidance for your executors who will have to deal with your digital footprint in accordance with the terms and conditions of each of the accounts.
Digital account providers are trying to provide solutions to these issues. Facebook now allows users to designate a profile executor who can access the account upon the death of the account creator. Twitter allows the person authorised to act on behalf of the deceased person to request an account to be deactivated. Email providers, like Google and Yahoo, will consider granting access to an account (or certain limited information) by the authorised person following a review of a written request. A Gmail user can designate an Inactive Account Manager who may access certain information if the account is inactive for a designated period. While these individual solutions are helpful, it is difficult to prepare each account to be accessed by a surviving family member, friend or professional, since each provider has different rules which are altering on a frequent basis. There are huge dedicated teams within each digital provider dealing exclusively with post-death issues. Their rules evolve rapidly to try to keep up with the pace of society and this can only have been heightened by Covid-19 and our greater reliance on digital formats to run our lives.
It is recognised that there are gaps in the law when it comes to digital assets and the Law Commission intends to publish a consultation paper on the subject during the first half of this year.
If you think you may be affected by this and for further advice please contact Mandy Casavant
01793 847 754 Email us