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Digital assets in probate: navigating the virtual estate

Mar 25, 2024 | Uncategorised

“Digital assets” is a relatively recent concept. The term refers to online photos, music libraries, email accounts, social media profiles, and more – anything we own but which is stored online.

What happens to them when we die is not just a technical question. It’s something that you may want to clarify with your probate solicitor whether you’re writing your own will or executing someone else’s.

Yet despite their importance, it seems the concept of digital assets has yet to go mainstream. A 2020 survey by the Law Society found that around a quarter of respondents know what happens to digital assets after death, and that 93% of wills don’t include any digital assets at all.

It’s in this spirit that we’ve put together this explainer article. We want people to more fully understand the issues surrounding the virtual estate so that they can deal with them more effectively.

In this article, we look at some of the issues surrounding the virtual estate – and how legal advice can help.

What digital assets do we own?

One of the strangest features of our online lives is that we don’t always own what we think we do. Just ask anyone who’s tried to exercise the right to be forgotten – it’s not a quick process to have information scrubbed from the internet, and it’s not always easy to pass it on after death.

If you upload photos to social media, for instance, you don’t necessarily own them. But if you’ve backed up the same photos to a cloud, you do.

A deceased person’s collection of books, CDs or DVDs is theirs. But music, films and other media bought online aren’t, necessarily. Often, these purchases are on a license basis, so they belong to the licenser, not to the deceased.

All of this introduces complexity to the probate process. Digital assets can be bequeathed – but they have to be owned by the bequeather. This could be as simple as ensuring you have backed-up copies of your photos or other media.

Whether you’re writing a will and want to protect your digital assets or are executing a will that includes them, advice from an experienced probate solicitor can be invaluable.

Who can access the deceased person’s online accounts?

When someone passes away, their online accounts need dealing with. This includes everything from bank accounts to social media.

Bank accounts are typically classed as part of the estate. This means they tend to be closed down by the will’s executor. To do this, the death has to be registered and certain documents shared with the bank.

In terms of social media, you have the option of creating a memorial account where friends and family can share their memories. If you want to turn an existing account into a memorial, you’ll usually need to know the deceased person’s username and provide a copy of the death certificate.

To shut down the social media accounts of the deceased, you’ll need to provide proof of their death. Depending on the platform, this could be the death certificate or a link to an obituary.

What does the Law Commission say about the virtual estate?

The Law Commission of England and Wales has published a report on digital assets, recommending reforms to the government. In the Law Commission’s words:

“Electronic signatures, cryptography, smart contracts, distributed ledgers and associated technology broaden the ways in which digital assets can be created, accessed, used and transferred…

“Over the last 15 years, personal property law in England and Wales has proven sufficiently flexible to accommodate digital assets. However, as the digital asset market and related technology continue to change, there remains some residual legal uncertainty and complexity.”

It recommends that a third category of personal property be introduced, one that will “better recognise, accommodate and protect the unique features of certain digital assets (including crypto-tokens and cryptoassets)”, along with “new ways [for market participants] to take security over crypto-tokens and tokenised securities”.

The government hasn’t yet made any sign that it will act on these suggestions.

Passing on crypto assets

The value of crypto tends towards the volatile. Nevertheless, some crypto holders want to include these assets in their succession planning.

By definition, crypto has no central register of ownership. To access the assets, you need long and complex digital “keys”. This makes it difficult for legal ownership to be established, especially after a death.

At present, the law has to rely on the deceased and their will’s executors to ensure that assets are recorded clearly. Because of this, it’s unlikely that cryptocurrency will be included in many assets – at least until the law is firmed up.

Conclusion

The law isn’t static. As society changes, the law changes with it. The 21st century has seen a huge expansion of our online lives and this has to be reflected in the probate process.

However, the law tends to move at a slower pace than society. This is because a lot of work has to be done before changes can be made that are fair and effective. In the case of the virtual estate, things are getting clearer – but uncertainties remain.

Because of this, early legal advice in the event of a loved one’s death can be invaluable. It can give you the facts you need to know to execute the will and deal with digital assets as painlessly as possible. At a difficult time, this kind of support can be a huge help.

Do you need help navigating digital assets and the virtual estate? At Milners Solicitors, we have a team of experienced, tactful probate lawyers who can help you at a difficult time. Get in touch and we can book you in for a free, no-obligation consultation.

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