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  1. Wealth
October 26, 2016

What happens to your ‘digital estate’ on death?

By Spear's

It’s time to keep a log of what you actually own online, writes Sophie Wettern.

In a world where many of us are increasingly leading our lives online, how many of us have really thought about what we would do if we lost access to our online accounts? We have all heard the recent stories of exploding phones, and we have all had that moment when your computer freezes and your heart leaps in your chest as the last few hours of (unsaved) work disappear before your eyes… But there are normally ways of recovering material. So what would you do if your online information was lost forever?

This scenario is not as unlikely as it might sound, especially in relation to what happens after your death. Although the majority of us have thought hard about who we would like to inherit our physical property, few of us are as organised when it comes to our digital estate.

What are ‘digital assets’? This includes any aspect of your estate that exists primarily online rather than in physical form. Notably, online bank accounts, email accounts, photographs, music and films that you have bought only online, social media accounts, online shopping accounts – and even computer game characters, for those World of Warcraft fans among you. Often, there is a limited time after the death of a customer/subscriber while their account can remain accessible in a limited way; after that their emails, photos and other digital assets may not be able to be retrieved. However, this is not true for online banking.

At first glance, the most straightforward approach is to simply write down your passwords for everything and leave them in a safe place. However, from a legal perspective, this could actually complicate matters, as an executor accessing your account using your details could be committing a criminal offence under the Computer Misuse Act 1990. Instead, the Law Society’s recommended approach is to create (and maintain) a ‘Personal Assets Log’, listing your online accounts and ensuring that this is kept current, and making clear any particular wishes as to how you would like things to be dealt with after your death.

In some cases, the terms and conditions of the website or provider may prohibit you from passing on the digital asset you have purchased (or the service to which you have subscribed) to a third party. The approach of many companies is that you do not ‘purchase’ the data; instead, you simply acquire a lifelong licence which allows you to use it during your lifetime but not to bequeath it in your will. Examples include eBooks and music files.

Indeed, although under English law, the copyright of your emails should form part of your digital estate and pass to your executors, many of the main email servers are based in foreign jurisdictions, and as such are not subject to any UK or EU provisions.

So what can you do about this and how can you ensure that your digital estate is managed as well as your physical estate? The first step is to prepare (and maintain) an inventory of your digital assets, so that your executors are at least aware of what elements make up your digital estate. Don’t leave this online – store a hard copy with your will or in a safe place.

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In addition,  check your accounts to see what you actually do own and can pass on (and what you can’t). In particular, keep an eye out for any option for your account to be treated in a particular way after your death, for example for responsibility to be transferred to a particular nominated individual, or a window for your family to access your emails/photos.

Despite the digital rush, it’s not yet time to transfer all of your life online.

Sophie Wettern works at boutique private client law firm Maurice Turnor Gardner LLP.

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