Your Digital Legacy
Traditionally, estates have been thought of in very ‘tangible’ terms – usually comprising property, bank accounts, artwork, etc. However today, more of our lives and activity is spent online, with a resulting digital footprint and various digital records. These can include digital accounts (email and Facebook), digital devices (smartphones) and digital assets (photographs).
But what happens to our digital footprint if we lose mental capacity or die? What will be your digital legacy?
There are currently no Australian laws that deal with access to digital assets after death or incapacity, although it was recently announced that the NSW Law Reform Commission will be examining this issue and the interaction of current laws.
Although all of your estate, including your digital assets, vests in the executor(s) of your Will at law, the executor(s) may not be able to access or deal with your digital accounts unless they have relevant user names and access codes.
Most digital assets are held in cyberspace and as such they are truly global, thus raising interjurisdictional issues, particularly when one remembers that online platforms are almost wholly domiciled outside Australia. From an estate planning and administration perspective, difficulties arise because service agreements between users and online platform operators usually stipulate that the contract is between the registered user and the operator. Hence, online platform operators have been either unwilling or unable to allow relatives or trustees to access the personal records and other online material of the account holder in the event of death or disability.
Many online providers have End User Licence Agreements (EULA) which restrict access to the digital assets to the named individual, and expressly exclude personal legal representatives. Terms of Service (TOS) and privacy policies are generally mandated during the initial sign-up process. Some of these contain a section entitled ‘no right of survivorship and non-transferability’, indicating that survivors have no right to access the email accounts of the deceased. Many Internet Service Providers also do not have rules regarding what happens in the event of the account holder’s death or diminished capacity.
We all need to plan ahead so that access to our passwords, online account, photos and information (often stored in the cloud) can continue to be accessed if you become incapacitated or die. This may not only be important for family, but potentially for business partners as well.
We have compiled a checklist you can use to ensure your digital life does not provide unintended obstacles for your family and legal representatives:
1. Keep a list of all your digital assets and store a hard copy with your Will. You should ideally set an annual reminder to update this list of assets, accounts and passwords. Many people choose to store their Will at their lawyer’s office in a fireproof safe. Ideally you would hand deliver your update to your lawyer each year and they will print it and store it with your Will. You could email this information to your lawyer, but remember this is typically very sensitive information and email is prone to hacking so this method is not recommended.
2. Check service agreements. Many services only offer a limited ‘use right’ while you are alive, and there may not actually be anything for your beneficiaries to inherit. For example, many music download sites and eBooks only give you a ‘license’ to access content, and often this access is non-transferrable after death. So if you don’t give heirs access to these accounts, the content you have downloaded can be worthless upon your passing.
Some service providers give you an option to ‘memorialise’ your account after death (e.g. Facebook), so you should ensure your executors know your wishes and any particular message you’d like to leave.
3. List your passwords and online accounts, including what should be done with each one if you become incapacitated or die. You should also include general instructions to cover accounts that have not been specifically dealt with. Again, this information should not be saved on your computer as this can be hacked. The use of a separate hard drive may be a better option for many.
4. Back up data to a local storage device on a regular basis, especially if you store significant digital property in the cloud. That way your family can access the local storage device rather than deal with third party service providers who may be bound by privacy and data protection laws that blocks your access to content.
5. Update your Will and Power of Attorney to ensure it adequately addresses digital property assets. Your estate planning documents should:
Consider appointing an executor who is familiar with technology;
Specify your wishes about the distribution or deletion of your digital property. If your assets include websites or social media accounts that generate advertising revenue, or cryptocurrency these should be included;
Provide your consent to divulge the contents of your electronic communications to your executor;
Authorise your executor to access your computing devices, storage devices, accounts, and data; and
Permit your executor to bypass, reset or recover your passwords on your computing devices and to decrypt your encrypted data, if desired.
Author: Rick Walker. With thanks to Angela Harvey (Swaab Attorneys) and Norbert Schweizer (Schweizer Kobras)