Due to the Covid-19 pandemic, many of us have spent a large amount of time at home which meant our online usage increased. Most of us have accounts with Facebook, Twitter, or Instagram, we likely have subscriptions to streaming services such as Netflix and Spotify, we are frequently sending emails and buying and selling through PayPal and eBay.
With the increase in digital activity, it is important to understand what happens to our digital assets when we pass away.
What are digital Assets?
Digital assets include:
- Social network platforms (such as Facebook, Instagram, Twitter and LinkedIn);
- Email accounts;
- Loyalty programs (such as Flybuys, Rewards and Frequent Flyers);
- Financial accounts (such as PayPal)
- Subscription services (such as Netflix, Amazon and Spotify);
- Pictures and documents storage (such as Google Drive and Apple iCloud); and
- Hard storage devices (such as desktops, laptops and external storage drives).
Who controls your digital assets?
Currently in Australia there is no law that addresses what happens to your digital assets when you die.
As there is no legislation dealing with this, digital assets are governed by the specific terms and conditions of the various organisations.
So what happens to your digital assets when you die?
As each company has its own rules, your rights will differ across the various platforms.
Facebook allows your page to be memorialised or permanently deleted. Facebook also now has the option of allowing you to set up a “legacy contact”. The person you appoint looks after your memorialised account and manages your tribute post. However, they will not have access to your messages, or your security or settings information. They also have the option to arrange for your account to be permanently deleted. If an option is not chosen and Facebook is made aware of your death, Facebook’s standard policy is to memorialise your account.
Instagram allows your immediate family or next of kin to memorialised your page or request that your account be deleted. To enable this to occur Instagram will require proof of death such as a death certificate including identification of the person making the request.
LinkedIn also allows your immediate family or next of kin to memorialised your page or request that your account be closed. Memorialised accounts allows your legacy to remain on LinkedIn after you have passed away and access to the account will be locked. Whereas, closed accounts are permanently removed from LinkedIn and your profile will no longer be visible.
Twitter only allows your account to be deactivated. This request can be made by your immediate family or the person authorised to administer your estate.
Google has an “Inactive Account Manager” where you can set up what should happen to all your digital information and who should have access to it after you die.
Apple
Apple does not have a policy on what you can do with your assets after you die. Numerous Apple products are on a subscription or a paid service. For instance if you have music and movies, you are actually leasing the content and not buying it. Therefore, if you buy a song through iTunes, Apple grants you a licence to use the song and the licence is non-transferable.
E-books
Similarly, e-books such as Kindle only provide you with a licence and you do not own any of the titles on your Kindle. You have a licence to use them during your lifetime but when you die, the licence dies with you. It is not transferable.
Loyalty programs
Most loyalty programs such as Frequent Flyers are not transferrable or redeemable after you die.
What digital assets can you gift in your Will?
Any digital assets that you own and that are transferrable can be gifted in your Will. For example, funds in your PayPal account, your laptop or computer.
Digital assets that you cannot gift in your Will are the ones where you do not have the right to transfer them. For example, your email or social media accounts as you do not own these accounts but have a licence to use them.
What can you do to ensure your digital assets are dealt with in the manner you wish?
With an overwhelming increase in the way we use the internet, our possessions are becoming more digitised and many of us don’t actually know what comprises of our digital assets. It is important that your executors or family have the means to access your digital assets on your death.
The first step would be to make a list of all your digital assets. In addition, prepare a document which records the usernames and passwords to each account, including answers to any security questions. This document should be kept in a secure place.
Secondly, once you have an understanding of what digital assets you have, you can specify what should happen to the assets after you die in your Will. For example, you can instruct your executor to delete all your accounts as soon as possible and to not keep any memorial sites of you or direct that they gift particular digital devices to certain people. Another approach is to prepare a letter of wishes which can be kept with your Will. In your letter of wishes you can specify exactly how you want each of your digital assets to be dealt with. The letter of wishes can be updated as frequently as you wish, without having to make a new Will.
How can Hunt & Hunt lawyers help?
The lack of legislation in this area means that there is little clarity for your family to deal with your digital assets. Our specialised wills & estate lawyers can discuss and advise you on how to appropriately deal with them. Our lawyers will carefully draft a clause in your Will or assist you in preparing a letter of wishes to ensure that your digital assets are dealt with properly.
Contact Us today
The Wills and Estates team at Hunt & Hunt are experts in this area and would be very pleased to provide you with assistance and answer any of your questions. Contact us at [email protected] or on (03) 8602 9200.
