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Digital assets after death – their place in the material world

13 Jan 2015

It was in 1984 that Madonna noted so tunefully that we are living in a material world. At that time, vinyl was the predominant form of music media. CDs were just beginning to break into the market and the internet was still a thing of the future.

Since then we have seen the boom of the internet and everything associated with living your life online; from social media, digitally stored music, online banking, and online payment accounts (‘Digital Accounts’), to sleek and sophisticated devices upon which to access them (‘Digital Devices’).

Digital Accounts will often exist with little or no record of them in the ‘material world’. The move away from a general paper trail documenting the accounts held by an individual can often make it difficult on death for an executor or administrator (‘the personal representative’) to ascertain the full extent of the deceased’s estate.

Even when the Digital Accounts are known to the personal representatives, accessing them can be difficult as they are often heavily protected by usernames and passwords. This is also the case for the Digital Devices upon which the Digital Accounts are accessed and/or stored.

When considering your Will it is therefore advisable to think about all of the Digital Accounts you hold and how you would like them to be dealt with on death. It is also important to consider the Digital Devices through which such accounts are accessed and what is to become of them on death.

Even when Digital Accounts and Devices are known and can be accessed, it is important to ensure that the terms of usage in relation to the accounts and devices are adhered to. Often the account or device is not actually owned by the individual, but is instead held under a licence which cannot be assigned or transferred to another user. Similarly, the sharing of usernames and passwords can often be prohibited under the terms of usage, and it is therefore not always as straightforward to deal with such assets as it may first seem.

For example, leaving a digital library of music to a loved one may not be possible if it is only a licence which is owned by the account holder, unlike an ‘old fashioned’ gift of CDs which are physically owned once purchased. Likewise, an array of personal photographs stored on a social media account may be more difficult for friends and family to access and retrieve than the traditional photo album.

In considering what to do with digital assets, either when making a Will or when administering an estate, we would recommend you obtain professional advice from a qualified solicitor.

At Hay & Kilner we can provide advice on how digital assets may pass to, or be accessed by, family and friends to avoid problems arising in the future, which is usually done through our bespoke Will review and Will preparation services. We can also provide advice to Executors in the administration of estates which include digital assets.

For further information or advice, please contact Alice Clewes, Partner at Hay & Kilner, on 0191 232 8345 or email: alice.clewes@hay-kilner.co.uk