What are Digital Assets?
Digital Assets include all your online accounts and hard storage devices that contain data, which can be personal or financial, most of which do not have an expiry date. Through the use of social media and other devices, we have created our own digital history or “digital assets”, some of which may be personal and others which are our business.
A recent survey conducted by the NSW Trustee and Guardian revealed:
- 9 out of 10 Australians have a social media account;
- 83% have not discussed with their loved ones what they want to happen to their accounts when they die;
- 83% of Australians who have a will have not decided what they want to do with their social media accounts after their death.
In a society where Youtube stars have the potential to make millions, it makes sense that you properly define what happens to these digital assets in the unlikely event of your death.
Online accounts include:
- Social networking platforms, such as Facebook, Twitter, and the good old Myspace;
- Email Accounts;
- Cloud storage (such as Google Drive, Apple iCloud, Microsoft Skydrive);
- PayPal accounts or other financial accounts.
Hard storage devices include laptops, desktops and external storage drives locked by encryption.
How are Digital Assets dealt with under a Will?
Digital assets form part of your estate and are treated the same by courts as any other asset.
It is prudent to plan and make provision in your Will as to what to do with your digital assets so that you can minimise certain risks including:
- Identity theft after death which may jeopardise digital assets or lead to loss of estate beneficiaries;
- The prevention of required asset transfers to family members who may not have access to or awareness of your digital assets (eg if the individual had an online shopping account which may have a credit attached or an ongoing blog which may be worth large sums of money due to advertising); or
- Issues with social media, including pages being defaced or awkward invitations to a deceased person because of a continuing online presence.
Pending the development of legislative guidance or clear case authority, we recommend that you make an effective digital asset management plan which might involve:
- Making a list of your digital assets and online accounts, including every website on which you have an online presence.
- You making a record of the usernames and passwords to each account, including answers to any security questions which will allow for the password to be bypassed or changed. This information should be kept separately from your Will, perhaps in a safety deposit box or in a sealed envelope to be stored with the Will and updated from time to time.
- Ensuring your Will contains a specific clause to allow for your executors to access some or all of the testator’s digital assets (as defined in the Will) which refers to where the full list and password information can be found. You might also consider appointing a separate “digital executor” who is more comfortable with technology.
- Leaving explicit instructions as to how you want your digital assets to be dealt with. This will involve, for example, consideration of whether you really want family reading their personal emails or accessing other personal information, or whether the testator simply wants all online accounts to be deleted.
Understandably, as there is often sensitive and private information available online, you might not want just anyone accessing or sharing your online accounts after your death. It is worth looking into the policies of your relevant email, iCloud or social media providers to make yourself aware of their procedures following notification of your passing.
It is important to know that the law is still developing and changing in this area. Rockliff Snelgrove Lawyers Wills and Estates Lawyers can assist and guide you with your estate planning to consider and attempt to deal with all of your assets including digital assets in the event of your incapacity or death.
Get in touch with us today to see what difference we can make.