This is your (digital) life

In the not-so-distant past, the television show This Is Your Life took celebrities through their lives with the aid of a ‘big red book’. These days, the photos, stories and memories contained within that book would be online, accessed only via complex combinations of usernames and passwords. Crucially, one needs to know these online accounts exist in the first place – something which is not always apparent from a search of physical belongings.

Twitter, Facebook, Instagram. iTunes, LinkedIn, Paypal. Six words which have become synonymous with modern life. Most will have an account with at least one of these. The accounts interact with our ‘real’ lives on a daily, if not hourly, basis.

However, when an executor or attorney (a fiduciary) wants to access the digital assets of a deceased or incapacitated individual, they may face significant barriers.

Digital assets

Digital assets are those which are accessed or held online and, as well as the six names mentioned above, can include:

• Financial institutions: online banking, online auction sites, share trading accounts.
• Intellectual: cloud storage, domain names and websites.
• Sentimental: photo sharing accounts (eg Flickr).
• Social and personal: email accounts, personal medical records, laptops and e-readers, tablets and mobile phones, and computer game ‘avatars’.

Duties of fiduciaries

A fiduciary has a duty to manage, advise and value (where appropriate) all assets with due care. This is particularly relevant for executors and attorneys.

Some of these digital assets have a financial value which, if overlooked by a fiduciary, could lead to claims for negligence or penalties for non-disclosure.
For example, a domain name
may or may not have a value. Many online games, accessed
via games consoles, PCs or (increasingly) mobile phones
and tablets, involve users making real-money purchases to buy characters, tips or extra levels
to enhance their game-playing enjoyment and experience.

Issues on death and incapacity

Getting access to another’s email account and digital media is difficult. Two conflicting issues need considering: the privacy of the individual who has died and the privacy and rights of the senders and recipients of the email messages.

Most internet companies
have specific user terms and conditions that make it difficult for third parties to access content after an individual’s death or incapacity. Many people believe they own their digital assets when many such ‘assets’ are actually held on licence only. It may even be illegal to access another’s digital asset.

The law is unclear on whether digital media is an asset which could transfer on death. Most end-user licence agreements actually state otherwise.

Most email accounts will be terminated and all information deleted within a certain period of non-use or after notification
of death.

Online social media sites are often deleted after certain periods of inactivity and do not allow the transfer of login details.

The solution may appear to be simply making usernames and passwords available to a relative or beneficiary, but this has its own problems:

• wills become public documents, so listing passwords and usernames in the will itself is unwise;
• providing details to a third party may breach ISP end-user licence terms;
• if you release a password to someone and then fall into dispute with them, banking, email and networking accounts could be misused;
• personal banking could be abused, especially in the case of elderly or vulnerable individuals relying on carers to assist with day-to-day activities;
• employees may access online passwords, which could cause serious business security or confidentiality issues; and
• a third party (a spouse or relative) may discover, by innocently accessing incriminating emails after a death or incapacity, unwanted or embarrassing information.

Possible solutions

• The priority is ensuring there is a will and lasting power of attorney specifically naming an executor or attorney. That person then has the authority to begin locating digital assets by liaising with relevant operators.
• Make your clients aware, in line with recent Law Society protocols, of the problems with identifying and accessing digital assets. Ensure that they make a list (on paper, through a letter of wishes stored securely with the will) of all digital assets held, recording who should benefit from them. Urge clients to keep lists regularly updated.
• Ensure digital assets left as specific legacies are appropriately defined.
• Clients may consider using one of many digital legacy services – some of which provide encrypted password storage services – to be accessed in the event of death, giving a secure place to keep track of all digital assets. These do not necessarily allow fiduciaries to access actual accounts, but enable them to find out what assets exist and where they are located. Be aware that companies running these services may cease to exist or be purchased by another company. What happens if the fiduciary does not continue paying the subscription?

Online accounts, whether economic or sentimental in nature, should be identified, but this is your life, so take care to preserve security and privacy. SJ

Stewart Stretton-Hill (pictured) is a senior associate and Ben Saunders a solicitor at Thomas Eggar