What are digital assets and what happens to them on death?
Digital assets are digital media accounts and rights that you own or have a right of access to. Digital assets are not physical assets -they encompass digital mediums like your Facebook, Instagram, and Twitter profile. These are just a few of what could be considered your ‘digital assets’.
Some digital assets are inheritable and some are not. It depends on who actually owns them and this is governed by the terms and conditions of that particular asset. In other words, what’s in the fine print?
Quite often the ownership of uploaded documents vests in the service provider (Facebook for example) and not the end-user (yourself).
We suspect that no one actually reads the terms and conditions when signing up for online media or online accounts and I constantly find that the user’s idea of what he or she has actually signed up for and is entitled to is vague.
Some service providers will terminate an account when the death of the end-user occurs and they are notified of the death by the Legal Personal Representative. In many instances that is the end of the matter and there is nothing to inherit. The hitherto unread Terms and Conditions will simply dictate this.
Social media service providers have various policies which apply on the death of the end-user ranging from automatic deletion of profiles, restricted or no access for Legal Personal Representatives or heirs through to the possibility of profile memorialisation (e.g. Facebook). The possibilities across the board are endless hence the need to read and consider the Terms and Conditions in each separate instance.
When considering digital assets (social media accounts) we must look at and determine ownership or right-to-use.
Certainly, your Will may include a clause passing on digital assets (for example, your Facebook account) but it cannot override the Terms and Conditions which formed the contract between the service provider and the end-user.
If ownership and inheritability are in doubt you are well-advised to make backup copies of any digital assets which you may wish to pass on through your Will and ensure that your Legal Personal Representative has access to them following your death.
This article was written by Geoffrey Armstrong while he was under the employ of Bennett & Philp Lawyers.
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