Do I own digital assets and can I leave them in my Will?

 

The simple answer is, yes, almost certainly you do, even if you don’t realise it.  What is less simple is what type of ownership you have and therefore whether you have any that can be left in your Will.  You can consult with us to clarify your particular position in so far as the law has developed to date, and a special clause can be added into your Will to cater for the type digital assets you do own. 

 

(Credit to the Society of Will Writers and Estate Planners for much of the updated information).  Digital assets can be owned outright, or sometimes you may not realise you only own the licence to use them.  These usually belong to the person making the Will and can therefore pass to his personal representatives / executors.

Key examples of these types of assets are:

• Cryptocurrency such as Bitcoin and Litecoin.

• Domain names for websites

• Balance in an online betting account

• The content of blogs

• Monetised YouTube Videos

• Online gaming avatars and goods worth real-world money

• Photographs, videos, audio and other literary assets stored online.

 

These are all things that should be easy to identify and if necessary, specifically gift in the Will. If the

digital asset has intellectual property rights associated with it then the person making the Will may need to consider gifting this separately.  Where a computer or laptop is left with all of its contents, this forms property that can be passed within the estate, but we also have to consider what happens to data that is held elsewhere, such as the Cloud, not to mention including a mobile ‘phone and its contents.

 

Another type of digital asset that we may feel we own is social media and email accounts. Some people post a fair amount of information about their life on their social media accounts including pictures and videos and would like some control over what happens to this account when they die.  It is possible for a user to put planning in place for what happens to these accounts on death, but it must be done in lifetime outside of the Will.

 

You may also want to consider appointing a special executor just to deal with your digital assets. It isn’t always necessary as naturally an executor has the authority to deal with any of the digital assets but it may be that the person the testator wishes to handle their general

estate is not the best fit to handle their digital estate. I’m sure we all know someone who would make a great executor but who is woefully unskilled at using a computer.

 

As this website will have made you aware, the law around succession and ownership of property that can pass via a Will is ever evolving.  In July 2017 the Law Commission launched a public consultation paper into making a Will and the reforms that were suggested all centered around a need to modernise succession law. In this paper the issue of digital assets was discussed.  The first issue they identified was the difficulty in defining digital assets.  The main issues stem not from succession law, but from contract law and intellectual property law. They suggest that for any progress to be made in this area of succession law we must first look to reform the laws relating to user agreements and terms of service for digital platforms as that is the root of the problem.  They hope to address this in a future law reform project. 

 

In addition, the Law Commission pointed out that many people making a Will opt to leave a list of passwords and instructions on how to access their devices and accounts. This is often encouraged as there are some assets that will be lost to the estate if the executors are not given the means of accessing them. The problem with this is that sharing passwords is often in breach of various services user agreements. In fact, usually we are encouraged to keep these things a secret and not even write them down!  So, as you can see, this is not a straightforward area. 

 

However, we can help you navigate this and advise you on a way forward.  What is essential is that it is dealt with.  It is another aspect of the developing modern world, that your Will can help you plan and organise for.