Does Your Will Include
Your Digital Assets?
The digital world impacts every part of our lives and our Wills are no different. We all own some digital assets, even if it is a social media account. What happens to these digital assets after we die and how do we ensure that our beneficiaries have access to those digital assets that have a monetary value?
No Specific Legislation
At present, in Australia there is no separate legislation which determines how digital assets and subscriptions are handled on the death of a person. Even if there was Australian legislation, it would have limited enforcement because some digital assets you own may not be domiciled in Australia. However, on a case-by-case basis, there may be contractual arrangements or rules and regulations of different providers that deal with the digital asset on the demise of the owner or subscriber.
The most pervasive type of digital asset is a social media account – by this we mean your account on platforms such as Facebook, Instagram, Tik Tok, Snapchat, Twitter, WhatsApp and the like. Each social media platform will have different rules about demised account holders, For instance some platforms will just deactivate your account after a long period of disuse. In some cases, if your family inform the social media platform, they may ‘memorialise’ your account. In either case, it is probably best to make mention of your various social media accounts in your will so that your executor can inform the platform and arrange the appropriate action.
What about email accounts – how would you like these and the messages within them managed. Not all email providers have terms and condition that deal with the death of an account holder. If you are going to arrange for a beneficiary to obtain access to your email accounts be conscious of what is in your messages. If there is content that will hurt or embarrass your beneficiary, perhaps your executor can be instructed to delete messages tagged as “private’ by you, prior to giving access to your beneficiary. This involves a lot of forward planning of course.
Monetised Digital Assets
The next issue is in relation to those assets that form part of a business or are themselves monetised or have access to your money such as your bank account. There are also some purely on-line banks. You may even have a credit balance on a payment system like PayPal or loyalty pints that are worth a lot of money. Or you may have a shopping website or a blog that is an intrinsic part of your influencing career or an app with thousands or even millions of followers. These assets have monetary value and again you should identify them in your Will and specify what you want to happen to them.
Actual Money Holdings
For those assets like bank accounts which have an actual money account deposited, it will be up to your executor to approach the account operator such as a bank or payment system provider like PayPal distribute the monies in these accounts in keeping with your will.
This brings us to the vexing question of access to the monetised digital assets where there is no existing money amount such as a shopping website. These can also be handled in in the traditional way of a business asset, however, this can only happen if the executor identifies the asset, so make sure to list your websites, blogs etc in your will and specify who you want them to go to…We all have passwords and they keep changing and there are also many double verification protocols in place.
Perhaps the most talked about digital asset is cryptocurrency. By its very nature it is built upon algorithms and may even be machine reliant, so how do you give access to cryptocurrencies to your beneficiaries? Some people have been known to lock the device they use for cryptocurrency holdings in safe-deposit boxes or safes, with instruction on how to access. If you do not want your instruction all to be in one place, there is a developing technique called ‘sharding’ which simplistically means splitting your access instruction into small parts so that no one person has the whole picture. Instruction as to how those shardded instruction are put together are then in the will or in yet another formula that only goes into effect on the entry of a code known only to your trusted lawyer…the complications abound and there does not yet appear to be a satisfactory solution in sight.
Make It Easy for Your Executor
The bottom line is that you will need to do some detailed forward thinking to make it as easy as possible for your executor to identify your digital assets and then give instruction in your will for each asset or class of assets. A starting point is a register of digital assets. Most people will have a list that goes at least into double digits and sometimes three digits. It is important to note that some digital assets such as cryptocurrency do require prior planning on behalf of the deceased for access to those assets to be granted after death. Cryptocurrencies often rely on access keys or passwords to access the wallet and trading platform, with no alternative access methods generally being available.
Australian Over 50s Living & Lifestyle Guide