Making a Will? Who are you leaving your digital legacy to?
13th June 2017
When the majority of people get around to making their Will consideration is routinely given to who they would want to inherit such assets as property, savings, shareholdings and personal belongings. In this day and age, however, when so much of our personal and professional lives play out online it is essential that due thought is also given to our digital estate: who would we want to leave, say, our iTunes library to; our Facebook profile, Twitter account or Instagram photos; our blog or domain name? Whilst there may be no financial value to a lot of digital assets – although the digital bitcoin is more valuable than gold! – they could nonetheless be of great sentimental value and we should consider which family member or friend we would want to pass them onto in the same way as we would a piece of jewellery.
Wills often include a clause which bequeaths ‘all my personal chattels’ to a specific beneficiary or to the Personal Representatives (PRs) to distribute among family and friends. In defining the meaning of ‘personal chattel’ section 55 of the Administration of Estates Act 1925 says that it is our ‘tangible moveable property’. This is a catch-all definition. It does not provide the necessary guidance or clarity to those administering our estate if they are trying to determine whether or not one of our digital assets would fall within the meaning of ‘personal chattel’. All the more reason therefore that we name our digital assets as specific legacies in a Will and so avoid problems down the line when our PRs are trying to sort out those assets in our estate which have not been dealt with specifically in our Will.
With each of our digital assets there will be an associated password or username. How can the relevant account be accessed if, on our death, the log in details cannot be traced? Just as we recommend that details are kept of bank and building society account numbers and other physical assets it is similarly sensible to keep a log of our digital assets and their access details. It goes without saying that this detail should not fall into the wrong hands and we would strongly recommend that it is kept alongside the Will, preferably in an encrypted format.
It is also worth considering the procedures that your PRs would need to deal with when closing down your various accounts when you die. PayPal for example, ask for a death certificate, a photo of the PR to prove identity, a copy of any Will and, if applicable, Grant of Probate. Facebook allows for profiles either to be shut down, when all photos and comments will be deleted, or to be ‘memorialised’ for a period after death so that family and friends can continue to post comments. However, logging into the account post-death is not permitted since Facebook contend that accessing a memorialised account could breach certain US laws such as trespass. Providing this sort of useful procedural information with your Will would, again, greatly assist your PRs in the administration of your digital estate.