Control, alt or delete

Many clients forget about their digital assets, unaware that they must make specific provision about their bequest. It is now easier to do this; the problem is persuading people.

In April, Google became the first of the big internet server providers to allow account holders to specify whom their Google-run accounts will pass to after death. Users of facilities such as Gmail, YouTube, Google Plus and Picasa Web Albums can update their account settings so that after a three-month minimum period of inactivity, their chosen ‘trusted contacts’ can access the data. Alternatively, the user can opt for the information to be deleted and not passed on. This is broadly akin to making an online will, although it is processed more informally.

Google’s announcement was seen as a reaction to recent cases in the US, where family members have sought to access a deceased person’s online accounts and have been prevented from doing so by the relevant internet service providers.

The case of Benjamin Stassen, who committed suicide in 2010 without leaving a note, highlighted the problems that can arise. His parents, as personal representatives of his estate, sought access to his Google and Facebook accounts in trying to find an explanation. Initially, both service providers refused on the grounds of privacy, but following a court order, Google provided access. Facebook, however, continued to stand by its policy of customer confidentiality.

Digital education

Unless there’s a specific instruction giving a beneficiary access to digital data, most service providers’ standard terms and conditions uphold the user’s privacy and automatically delete their information on death. For now, it seems that the large providers, such as Apple, Microsoft and Yahoo, will not recognise that a beneficiary named in a deceased person’s will (or entitled under the intestacy rules), is authorised to inherit a deceased person’s digital assets in the same way as their physical property.

There have been no specific cases in the UK to date, so it is difficult to know what line the UK courts would take, especially as we do not have a law of privacy, but it is likely that they would consider the US approach.

To help avoid issues with who can access digital data after death, clients should keep a list of their online assets, their usernames and passwords and clearly identify to whom the relevant account should pass. This applies to emails, social networking, online photos and gaming, and accounts on phones, tablets and MP3 players.

Data backup

The information could be listed in the client’s letter of wishes or, if the list is extensive (as many will be), in a separate spreadsheet annexed to the will. In addition, it would be wise for those with Google-run accounts to update their settings with the names of their chosen beneficiaries, so that there is a backup if there is a problem with the written wishes being given effect.

If users have particularly valuable online data, such as photos or important emails, it would be sensible to consider creating a backup disk or printing hard copies to be kept in a safe place, in case there are any issues with accessing their accounts after their death.

When making a will, the assumption is usually (and fairly) made that the residuary estate includes all digital data owned by the individual and that, by default, the named beneficiaries will be able to access digital assets along with all the deceased’s physical property.

However, this will not necessarily be the case. Specific instructions and authorisations must be given alongside the will, at least until the other major service providers follow Google’s example.

Fay Copeland is partner and head of private client at Wedlake Bell

Fay's column is published in the monthly magazine