While most people are aware of the importance of making a will to ensure a proper and orderly transfer of their estate assets, their “digital assets” are often overlooked.
What are Digital Assets?
The term “digital assets” can be used to describe any content or information stored electronically such as the login authorisation details for an individual’s email account or social media account. It would also include media stored and/or purchased online such as iTunes or YouTube. Such assets can be grouped into three main categories:
This would include data stored on computers, smart phones or other such devices. It would also include data uploaded to the cloud i.e. uploaded to a website or digital service and data/media purchased via a service such as iTunes.
These generally comprise photos, videos or other media stored on such accounts e.g. Facebook, Twitter etc.
The most common example would be online banking login details. While the majority of such accounts in Ireland are linked to accounts located at a standard “bricks and mortar” financial institution, purely online banking accounts are becoming increasingly available. Other examples of this category of assets would be online accounts relating to sites with no “bricks and mortar” connection such as eBay, PayPal and Degiro (online stock trading site). This category of digital assets may have a financial value.
Treatment of Digital Assets on death of owner/creator
In the case of digital assets stored in the cloud, the terms and conditions imposed by different online providers vary widely and in many cases do not provide any contingency or provision in the event of the death of the owner/creator of such assets.
There is no legislation in place in this jurisdiction governing the treatment of digital assets on the death of the owner. This leaves the treatment of such assets to be governed by the terms and conditions of the online service provider involved which may not necessarily coincide with the wishes of the deceased owner. Given this uncertainty, a court application may be necessary to fulfil the wishes of the deceased.
To ensure the distribution of digital assets on an event of death, it is recommended that the following steps should be taken:
- Draw up a list of your devices and the digital media stored and accessible on each such device. Bear in mind that the individual dealing with your estate may not be as familiar with your situation as you are. Identifying what devices are used to access certain sites is particularly important where two-step verification is used (i.e. where a site requires a verification code, which changes constantly, to be sent to a smartphone in addition to the username and password).
- Make a list of logins and passwords and keep them as a separate document with your will. It is not advisable to incorporate this list in the will itself because (a) any change in the login details will require the execution of a new will and (b) these details would become a matter of public record once Probate has been extracted.
- Make your wishes known in your will in relation to how your digital assets should be distributed. While such assets may only have limited financial value, they may be of immense sentimental value to your family.