If you’ve made a will—and if you haven’t already, you might want to consider it—you’ve almost certainly thought about what you want to happen to your assets, such as property, after you die.
But have you also thought about getting your digital affairs in order?
As our lives become increasingly digitized, most of us will probably have to think about the fate of our digital assets when we die. However, inheritance laws in Australia do not strictly address digital assets and access, even though they can and should be part of your estate.
“It was assumed that we can treat digital assets in the same way we treat traditional assets, but that is not the case,” says Professor Prue Vines, an expert in inheritance law from the School of Private and Commercial Law bee UNSW Law & Justice.
“Instead, the law has fallen behind, which means wills makers need to be better prepared for their digital assets.”
What are digital assets?
Digital assets include a wide variety of items that exist in digital form, such as blockchain-based finances, emails, cloud-based photos, and social media accounts. It may also contain resources that facilitate access, including computer hardware, tablets and smartphones.
Dealing with some of these assets in a will can be easy. If the digital asset belongs to you and is transferable, it can be donated in your will, such as money in a bank account or physical items such as a laptop.
However, not all digital assets to which we have regular access – and which are considered ours – are our property.
For example, many of our digital accounts are owned by companies whose services we use, such as Facebook or Instagram. This is stipulated in the terms of service that we agree to when we sign up and that many of us don’t bother to read.
“Instead, most of those contracts state that the user does not own the account as property, but has a non-transferable license to use it, which expires upon death.”
As such, many of our digital assets are not considered our property to pass on, even if we created them.
For example, unlike a physical letter, an email is usually not owned by the user and cannot be transferred after death.
Passwords and access barriers
Almost every single digital service provider also has clauses prohibiting password sharing in their terms of service. This can also apply to assets that are not themselves digital but require digital access, such as an online bank account.
“The ban on password sharing can prevent the executor from accessing digital accounts, even when a will stipulates that digital files are part of the estate,” said Prof. Vines.
“In other words, while it may be essential for your executor (person executing your will) to access your email, there is no official right for them to do so.”
There have been several cases abroad where companies have refused to allow access to a deceased user’s digital data because of this provision.
“To get around the problem at this point, it often boils down to users violating the contract terms with the provider,” said Prof. Vines.
“In reality, we know that people do this all the time by casually sharing passwords with others.
“The other solution seems to be using a password manager to keep all passwords in one place, which helps keep the executor up to date.”
What about cryptocurrency?
Similar issues arise when leaving virtual currencies such as Bitcoin in a will. Unlike regular money, which can also be physical, these assets are virtually stored on a blockchain and can only be processed digitally.
To access the cryptocurrency, the executor needs to know where to find his unique private key – a code used in cryptography to authorize transactions and prove ownership of a blockchain asset. If the private key is lost, so is the Bitcoin.
“With Bitcoin, the paper of the physical wallet contains the only copy of the private key, which can be hidden and presumably the executor can be told where,” Prof. Vines said.
“Although for reasons of secrecy it may be unwise to include the details of this location in the will itself.”
prof. Vines said much-needed reform is likely on the way.
“Ultimately, we need clarity, and now is a good time for us to create a sensible regime around digital access to assets in probate,” said Prof. Vines.
“There should be a clear statement that the executor should be treated as the user in the event of death and be entitled to password access to the estate property. This way there is no confusion, no resistance and no breach of contract.”
In the meantime, pending legislation, will makers may consider documenting their digital assets and recording and storing the details for each account in a secure location.
They can also specify in their will that the executor will have access to the wills maker’s digital assets defined in the will, where to find the information to access the accounts and instructions for how to treat each asset.