Increasingly, individuals’ estates include digital assets such as photographs, music, online gaming characters, and information stored online, such as on a blog, email or Facebook accounts. They may also be normal assets which are held in digital form, such as online bank accounts.
No statute or case law exists to deal with the ownership of virtual goods so it is up to the content providers to decide what the consumers are allowed to do with digital assets. Most content providers’ terms and conditions either forbid the sharing of content, or suggest it is not permitted. Their general rule is that you do not purchase the data, such as a song, a book or a film – simply a lifelong licence to use it. It follows that you cannot bequeath this in your will (beyond bequeathing the device onto which the data was downloaded).
As posthumous ownership issues increase, companies have begun to introduce policies regarding bequeathing digital assets. For example, Amazon UK’s terms and conditions forbid users bequeathing digital assets, including books purchased on their Kindle. Music purchased on iTunes provides the owner with a personal, non-transferable licence which cannot be transferred on death or by gift. Facebook’s terms state that an account cannot be transferred without getting Facebook’s written permission. On receiving proof of a member’s death Facebook will close the page or memorialise it, where personal information cannot be updated, but friends can leave messages. However, non-family members can request that a page be memorialised, which could lead to the deceased’s family being faced with a Facebook page over which they have no control.
Under English law, the copyright of emails and other material stored online should form part of a person’s estate and pass to the executors. However the lack of relevant statute means that the internet providers control access, which they do not always allow. Additionally, many of the main email servers are based in foreign jurisdictions, and so are not subject to any UK or EU provisions.
Until relevant legislation has been introduced, it is up to individuals to decide what to do about their digital estates on their death. Digital Estates planning is a rapidly growing area: secure websites exist to store all of the information pertinent to your digital assets – passwords, usernames, and content. Some even provide a posthumous email service which will send your family a pre-prepared email on your death. However, the use of these online digital estate planning service is not without risks.
It is also possible to leave digital asset information within a will, but there are serious risks to this and it is not recommended. Wills are public documents and this information will eventually be available to anyone.
Additionally, leaving out of date information may be more confusing than leaving none at all. A safer and more flexible solution to enable executors to deal with your digital assets would be to keep a record of your digital estate so far as you can remember them in a secure place. In this paperless age it would be easy for an executor to overlook an online bank account or building society account, which could contain a large bulk of your estate.
A record of your digital assets, which is made available to your executors after your death, will provide your executors and beneficiaries with the information they will need in order to realise your digital assets with minimal risk.
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