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Digital Wills: Upsetting the "Apple" cart

View profile for Caroline Farmer
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Laptops, phones and tablets are all too common in the household and there is often much more value to these devices than just the price. These devices store videos, photos and music which are known as “digital assets”. If all of the available space on the device has been used, information is then stored on the “Cloud”.

There is no current definition of a digital asset in UK law but there is an increasing need for a person’s digital footprint to be organised on death, as there is lots of private information that needs to be preserved or removed. For example, if a person’s date of birth, address, phone number and email is kept online after their death, there is a greater risk that their estate is more vulnerable to identity fraud, as criminals can apply for credit cards in their name whilst their accounts are unmonitored.

What happens to these digital assets on death is entirely dependent on the policy of the company the deceased purchased the device from, so you should check the terms and conditions of these companies. Google has an ‘inactive account manager’ where a nominated person can manage your email if your account has been inactive for a minimum of 3 months and Facebook allows you to select a ‘legacy contact’ which gives a friend limited access to memorialise a deceased user’s account.

However, Apple’s policy is particularly unpopular amongst its users as their ICloud system has a ‘no right of survivorship policy’. This means that an account becomes non-transferrable on death and any content held on the account falls back into the ownership of Apple. This can cause a problem where a family member dies leaving photos and videos of sentimental value on an Apple ICloud account that you are then unable to access because Apple do not allow the transfer of ownership rights.

That being said, in a recent decision against the tech giant Apple, a Judge ordered Apple to grant a widow access to her late husband’s Apple account photos and videos, so that she could help her daughter remember her father. The husband had not made a Will and a Court Order was required to force Apple to release the account information. 

In view of the above, you should consider how your other digital assets are handled, including social media accounts, subscriptions, loyalty cards, online investment services, cryptocurrencies and payment accounts such as PayPal, eBay and Amazon. Even if you choose to store account ID and passwords in a safe place so that family members can access your account information on death, your family will have no clear authority to access or manage these accounts.

Therefore, you should consider making an inventory to store passwords in an encrypted password management system with a master password to access the information. Remember that passwords and account information should not be stored in your Will as these become a public document on your death. We recommend that information should be contained in a separate document or letter of wishes.

Our firm can offer advice on creating a digital assets provision to include in a Will or Lasting Power of Attorney that will assist an executor or attorney in administering that person’s digital assets.

Additionally, if you have a large collection of digital assets then a carefully constructed Will definition can be drafted to ensure that some digital assets are included over others. We can draft your Will so that any valuable digital assets can be given as a separate gift or put into a discretionary trust for a specific class of beneficiaries.

Providing clear instructions before your death will save time, expense and the aggravation of family trying to manage or access your digital assets on death.

If you would like more advice on the issues raised in this article or a document drafted to protect your digital assets, please speak to a member of the firm’s Private Client team.