September 30, 2019 by Jen Wiss-Carline
When people think of the assets they might leave in Will, digital assets are very often overlooked.
Some digital assets will have a monetary value. Others will not be worth anything in money terms, but may have sentimental value (such as family photos).
Others still, are not an asset at all – but a licence to use software (such as a gaming account, social media account or banking app). However, whilst often the provider will specify that you can’t transfer the licence, it can help loved ones to deal with your affairs if they are given access on your death.
When considering digital assets, it’s important to remember that they should be treated separately from the device on which they sit. For example, you could leave your computer to your daughter but the family photos stored on your computer to all of your children.
Many people wrongly assume that they will be covered by a personal possessions clause their Will. However, for Wills executed on or after 1 October 2014, the definition of personal chattels includes all tangible movable property owned by the testator except business assets, investments and money. Digital assets are not tangible. Therefore you need to deal with them separately or extend the definition to include them as part of a personal property gift in your Will.
A range of digital assets have a value themselves which is separate from any computer or device that they may sit on.
These may include, for example:
If you do not gift these within your Will, they will fall into the residue of your estate which may not be what you intend. Further, in the absence of any instructions, they may be overlooked or lost.
You therefore need to take the time to document these assets carefully and decide how they will be distributed. In addition, your Executors will need access to these to be able to distribute them in accordance with your wishes.
You might be quite certain that you have paid for and own a digital asset – but what you have instead is a licence that terminates on your death. In such cases, you would not be able to leave the asset in your Will.
Other types of assets that MAY have a perceived value but often aren’t transferable include:
An example is the ‘gold’ you can earn in the online game ‘World of Warcraft’, together with other rare items which may be sold for more gold. The game is made by Blizzard, and their terms are very clear – all you have is a licence. You cannot in any way transfer your right to any component of the game (sorry, not even legendaries!), and once you stop using the game (i.e. on death!) the agreement is terminated. You cannot therefore leave it in your Will.
Another example is a social media account with a large following. So-called ‘Influencers’ on social media can make good money promoting products and services – and so their accounts are worth something. However, if the platform’s terms say they cannot be transferred, then that value may be lost on death. You’ll need to check the terms carefully to see whether you can actually pass the account on as an asset. If not, you can of course still leave the access details and instructions – for example, as to any message that should be posted.
Some digital assets are not really assets at all – they have no resale value – but providing access to them will make it easier for Executors to administer your estate. An example would be access to an investment platform.
Again, failure to leave instructions regarding these will not only make your Executors’ job harder, but may also mean that they are overlooked.
Some digital assets have no monetary value but have a great deal of sentimental value. A good example is your collection of family photos and videos, stored on a computer or hard drive. These can be left as part of a gift of personal property but as noted above, you will need to extend the definition in your Will to cover the digital asset.
Another example is your social media accounts. Whilst they may have no value as such, it may help loved ones come to terms with their loss if they can have access and post a memorial message from time to time.
Some services allow you to specify a contact who may have control of your account in the event of your death (see e.g. Facebook Memorialised accounts). Others allow an Executor to request that the account is removed (see e.g. Twitter). You may wish to write up instructions on how these should be dealt with. For example, you could request that a nominated person (perhaps your Executor) posts a message for your friends and followers. You could specify whether this should be a public message or whether (where possible) it should be restricted to friends/family.
Email accounts may include valuable information. They may also contain sensitive or confidential messages. Ensure that access to such accounts after death is appropriately delegated, keeping in mind whether there are any messages that may cause distress. You may wish to leave instructions to delete emails or the entire account.
You may also wish to store a hard copy of emails that contain valuable information.
If you have a business, consider any valuable information you may have which will be needed to ensure business continuity after your death. This might include access to accounts, software licence keys or client lists, for example. Careful consideration of whether these are an asset, who owns them and how these can be dealt with needs to be made, as part of your business succession plans.
Store your lists of logins/passwords as hard copies in a safe place.
Ensure that others know of their existence/location but do not hand them over to anyone else. This is very important – not only do you need to keep these details safe for your own security, but in some cases, passing them on during your lifetime may be a criminal offence under the Computer Misuse Act 1990 (the position changes on death).
It is vital that you keep your lists up to date. We would recommend updating them at least every six months.
For digital assets that have monetary or sentimental value, ensure these are backed up safely – for example, to cloud storage, or on a second hard drive or portable storage (CD, USB) and leave instructions on how these can be accessed. Ideally everything should be backed up both physically and in the cloud.
Jen was admitted as a Chartered Legal Executive in 2006. She advises on a range of matters for families, individuals and directors/partners. She has contributed extensively to various legal blogs and publications, including LexisPSL and the Legal Executive Journal, in addition to providing commentary for the Law Gazette. She holds a Masters in Law with Distinction and was Highly Commended by CILEX in 2018 for her private client expertise.
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