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Vanina Wittenburg discusses estate planning for digital assets

  • December 20, 2019
  • By Vanina Wittenburg, Senior Associate

Digital assets – in the form of digital photos and documents stored in Cloud, emails, music purchased through third party providers, social media profiles, online accounts for shops, utilities and banks, and so forth – are now pervasive in our lives, but how many of us have actually reviewed the terms and conditions we agreed to when we opened our accounts, and know what will happen to them when we die?

Anyone making a Will or undertaking estate planning should consider what digital assets he or she owns, and what will happen to those assets on their death – and this varies depending on the asset.

When it comes to online accounts and assets which do not necessarily have a monetary value, but may have sentimental value (such as iCloud accounts holding family photos, email accounts, or social media accounts), the terms and conditions of each service should be checked for provisions dealing with the account on death. It may be possible for the account-holder to nominate somebody to take over the account, or for personal representatives to access the accounts on presentation of a grant of probate, but not all providers will allow this – and in the absence of any such provisions, the only solution might be to keep a list of accounts, together with usernames and passwords, with your Will and other papers, so that executors will have access after your death.

As for books, music and films bought electronically, these are not assets that can be passed to somebody else under a Will. Any such digital assets are purchased under a personal licence, which comes to an end on death, and cannot be transferred. This means that any such assets, which could be worth a huge amount, will be lost on death.

There is better news in relation to cryptoassets, or cryptocurrency. The UK Jurisdiction Taskforce (UKJT) (chaired by the chancellor of the High Court, Sir Geoffrey Vos) has recently announced that under existing English law, cryptoassets are to be treated as legal property. This means that owners of cryptoassets have proprietary rights, rather than just intellectual property rights (as is the case for the online accounts mentioned above). This has important consequences for succession, as it means that cryptoassets can be left by Will – although this will require that the personal representatives, or the intended beneficiary, have the private key needed to access the cryptoasset.

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