Digital Estate Issues : How do 200-year old laws deal with Facebook, Instagram and Bitcoin?

Imagine, a person, all of whose assets are on-line. Mobile banking and on-line investments, email accounts, social media articles, bitcoin and cryptocurrency.

Not an implausible scenario, and therefore the inevitable being the inevitable, what happens in the event of such a person’s death? Especially when their will says nothing about their digital assets or liabilities, or even contain a single password or link.

“Traditional type” assets such as PayPal accounts, eBay accounts and online bank accounts can be legally passed on and left to beneficiaries in a will. Even online reward accounts.

In this article I will discuss some of the other less straightforward challenges facing the traditional wills and probate legal structure when dealing with the contemporary “digital asset”, and some solutions and tips that can be utilised where appropriate.

Do I “own” my iTunes library?

“You agree not to modify, rent, loan, sell or distribute the Services or Content in any manner, and you shall not exploit the Services in any manner not expressly authorised.”

This extract is from the Spring 2018 Apple Media Services Terms and Conditions (yes, I did actually read the terms, after years of skipping to the bottom and clicking “I Agree”).

Sharing your Apple ID, even if it is with your executors, is technically a breach of the terms of use.  Furthermore, the act of purchasing a song on iTunes is merely a licence for YOU to use the digital version of the same. By its very nature, the licence is not transferable (on death or otherwise).

I have not spoken directly with Apple customer services, but various blogs have indicated that they are a sympathetic bunch. The practical solution (without yet having taken Apple’s direct advice) would appear to be:

  1. Utilise your right in the aforementioned term and conditions to burn an audio CD with the content (you can make up to seven copies) for personal use (how someone who has passed can use something “personally” is probably a question for another article).
  2. Leave your account log-in and payment details for your executor to use. They will then be able to log-into your account after your death and update the payment details etc. to continue the account use. [DISCLAIMER: you should only leave log-in details etc if you are authorised to do so by the terms of conditions]

Of course, other music providers are out there, and careful analysis of the not-so-friendly world of licence user agreements will be necessary for your solicitor and executor. A very similar principle also applies to Amazon music accounts, and Kindle e-books which specifically prohibit any distribution.

Social Media Content– photos, videos, articles and comments

“If Facebook is made aware that a person has passed away, it’s our policy to memorialize the account.

Please keep in mind that it’s always against the Facebook Terms to log into another person’s account. We’ll only be able to give you access to an account if we can verify that it’s your own account.” [Facebook GB FAQs]

You can probably guess what comes next, and you may feel “it isn’t cricket”. But we all signed up to the terms of use, and they state that all content posted on a social media site remain the property of said website. If content is important to you, and there is likely to be a very high sentimental value to such items, you are strongly advised to make your own personal records of the same.

Many of us now store family and personal data in an electronic format. This data includes family photograph albums, email addresses and correspondence, along with other personal and household information. Failure to identify these assets in the will may mean that this important family information becomes inaccessible and is lost.

I have come across cases where family and friends have been in extremely upsetting situations where a loved ones page or contents has been inaccessible or unavailable.

Bitcoin – Save your Virtual Wallet!

A young man died suddenly in Colorado this year, leaving his family the burden of sorting out his estate. Little did they know their loved one had been investing in Bitcoin, the digital currency that cost as little as $13 in 2013 and recently climbed as high as $5,000. [earlier in 2021 BTC reached a value over $63,000]

The grieving family stood to inherit a small fortune—that is, if they could only find and access the cryptocurrency. []

Bitcoin is a virtual “currency” protected by extremely complex and secure cryptography. But due to these inherent defences, if the details of an individual’s “virtual wallet” (aka as a private key) are not known to the executors, then the beneficiaries face the very real possibility of never being able to access the asset. When you consider the basic idea behind bitcoin; Many people use it because it is pseudo-anonymous and many bitcoin operators are more than willing to cater to their needs, with multiple layers of encryption, authentication and a range of other services and security measures.

The solution is to ensure that details of the access details, private keys and similar are left in an accessible and identifiable format for the executors (or beneficiaries where appropriate).

Commercial managers also exist who are designed to assist with this very issue (e.g. Coinbase). There is an ongoing debate in the community about keeping “off-line” wallets, but ultimately the solution we are analysing here is however the assets are stored, relevant keys and passwords must be communicated in some secure and effective way to the executors.

Conclusion: A New Frontier

“Digital inheritance” is a fast developing area of law, and likely to develop further in the forthcoming years. Legislation has not yet caught up with the evolving issues that modern executors will increasingly face.

A recommendation could be to store an up-to-date list of all log-ins and passwords with your will, and to keep your will in a secure location such as your solicitor’s strong-room or at your bank (we offer to store certain wills free of charge).  It is sensible to make your executors aware of where your will is stored and content of the same. However, executors must be careful not to breach existing legislation or terms of business in logging in with other’s details.

Speak with our specialist solicitors in the Private Client department for a full wills service, including advice on how to deal with your digital estate.

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