Dealing with digital assets is fraught with problems, not least of which is determining their ownership when someone dies.
Digital assets take many forms: computer programs installed on a PC, laptop, tablet or mobile phone (along with related files and documents), music, photos and videos (taken with phones and digital cameras), as well as email, tweets and other social media content. This vast array of digital assets needs to be addressed not only when an estate is being investigated and ingathered, but at the earlier stage when a will is being prepared.
There was a time when planning a will meant taking instructions about houses, cars, jewellery, insurance policies, bank accounts, money etc. However, people today increasingly own (or have access to) digital assets.
A client’s digital estate may well be of economic value. Digital music and film collections can contain many thousands of pounds worth of content. Access to a work email may also be of great commercial value (particularly to an employer or business partner). There is, of course, the unquantifiable sentimental value that attaches to most of the foregoing.
Many solicitors will use a questionnaire as an <aide mémoire> when discussing a client’s requirements in preparing their will. It would be interesting to discover just how many of these capture both the extent and nature of digital assets. Indeed, a failure to seek instructions in regard to digital assets arguably is a form of negligence that could leave the solicitor open to a claim.
Determining whether (or how) a client can control the inheritance of his or her digital estate will depend on the particular service and/or content provider. Unfortunately, there is no consistency of approach.
First, there is a need to consider access to the particular service that holds or hosts the data. Invariably, the use of the service (and sometimes the software program) is governed by terms of service, with access controlled by the use of a username and password. When first signing up to a service (or on downloading and installing software), the client will be required to accept these terms and conditions which, invariably, he or she will not read! These usually contain a clause that states that the username and password must be held confidentially and not shared.
As regards content, with iTunes it appears that purchases cannot be bequeathed. Only a licence to play music is granted to a purchaser; that licence is not transferable. What iTunes does say, however, is that if an executor contacts them about a deceased user and supplies both a copy of the death certificate and a legal document showing evidence of entitlement to succeed to the deceased’s estate, it will transfer ownership of the account to that person. Alternatively, if the deceased had shared his or her username and password with others in the family, they can import the library to a hard drive and then transfer the songs onto another computer. However, this would not work with any content protected by DRM. Similarly, Amazon's Kindle licence prevents the passing on of downloaded purchases.
Of course, a physical iPod or Kindle can be bequeathed as part of the residue of an estate or as a specific legacy. Exactly what Apple or Amazon would (or could) do to prevent owners also from leaving passwords and account details is a moot point. In any event, solicitors should not forget to have digital content valued in the normal way, for the inventory of the estate (leading to the completion of a Form C1).
Networking the dead
Of the social networking sites, Facebook has perhaps the clearest policy. On proof of death it either will turn an account into a memorial page or close it. LinkedIn will close accounts after the completion of a “verification of death” form. MySpace will grant access to an account on the verification of death and will permit profiles to remain as memorials, on a case-by-case basis.
Twitter either will close an account or provide a permanent backup of public tweets, again on the instruction of a person authorised to act on behalf of the estate (i.e. an executor) or a verified immediate family member. Flickr will maintain accounts, which remain mostly accessible to the public, or can close them. Again, a copy of the death certificate (together with the URL and screen name of the account) is required.
PayPal will permit access to (and then close) an account after, first, sight of a death certificate and, secondly, both a will and photo ID that identifies the executor. Paypal also requires a letter specifying what to do with any money that remains in a deceased user’s account.
A formal statement of the amount contained in any Paypal (or similar) account will be required for the inventory (much like a bank account). What is interesting is the question of exactly where these funds are held; do they constitute estate held in Scotland or overseas?
Turning to email, Hotmail will permit access after receiving a death certificate and also proof both of the identity of the next of kin and their relationship to the deceased. Access is given to all content and contacts via a data DVD. Alternatively, an account’s content will be deleted after 270 days, with the account itself being deleted after one year.
Google, which provides Gmail, requires (in addition to the foregoing) evidence that the deceased actually wished to grant access to his or her relatives. Google will not delete a Gmail account but may, in rare cases, provide the content of the account to an executor. It is a two-stage process. Stage one requires the submission of information, including the relevant Gmail address, a photo ID of the executor and a death certificate. Stage two involves a review by Google, which can take several months. The executor will then be given further instructions as to what additional documents may be required.
Yahoo’s terms state that an account is non-transferable and any rights to a user’s Yahoo ID will be cancelled upon death. If Yahoo receives a copy of a death certificate, the relevant account may be cancelled and all its contents permanently deleted.
This is an evolving area of law and practice that is in a state of constant flux. Solicitors are advised to check regularly the ever-changing terms imposed by service providers. There are, however, some practical steps that can (and should) be taken:
- An inventory of a client’s digital assets should be made. This includes hardware, software, file structures, online presence, online accounts and work information. This will give executors a clear idea of the scope of an estate.
- Clients should appoint at least one computer-literate executor.
- Passwords should be noted carefully and kept separate from the will (which, of course, becomes public). There are sites that, for a fee, will allow the storage of this information online. If executors have the information, however, the risk of identity theft is reduced.
Finally, take full instructions. Which service providers should be notified of death? Should websites, social network accounts and blogs be shut? Should specific files be retained? Which files should be bequeathed? These are now questions that require to be added to any checklist.
For information on a Microsoft Account – Hotmail, Skydrive when someone dies, check out the following link:
Facebook policy when a deceased person’s account is memorialised:
Information on closing the account of a deceased person on LinkedIn:
How to contact Twitter about a deceased user:
How to access a deceased person’s Gmail account:
Closing the PayPal account for someone who has died:
In this issue
- Sep rep: wrong, wrong, wrong?
- The extra e in estate
- You’re NOT fired!
- Controlling tendency
- Case closed
- “Discrimination Against Women in the Law”: a forum report
- Reading for pleasure
- Opinion column: Brenda Mitchell
- Book reviews
- President's column
- Best measures
- Man in the hot seat
- Cohabitant awards: do they add up?
- A breach too far
- Lawyer of many facets
- Last piece of the jigsaw
- Partnerships: a firm line
- One bite at the cherry
- Whither Whittome?
- Achieving pension regime change
- Steve Webb's potty time
- Scottish Solicitors' Discipline Tribunal
- Honours shared
- e-business: call the shots
- How not to win business: a guide for professionals
- A year in focus
- Ask Ash
- Law reform roundup
- New firm, same clients?
- Diary of an innocent in-houser
- From the Brussels office