Digital Assets and Estate Planning: What Happens to Your Online Life When You Die or Lose Capacity

Modern Estate Planning should take into consideration both physical and digital assets.

What follows is an overview of Modern Estate Planning in the digital age and areas which you should consider in respect to planning in the event of death or incapacity.

Digital items include digital records and digital assets.

Digital records include information which is stored electronically and examples of digital records are as follows;^[1]

• social media accounts and profiles;
• digital music and eBook collections;
• online purchasing accounts, such as Amazon and eBay;
• loyalty program benefits, such as frequent flyer points;
• sports gambling accounts; and
• online gaming accounts and avatars

Digital Assets are items imbued with proprietary rights and include the following;^[2]

• cryptocurrencies, such as Bitcoin; and
• certain digital material in which users have intellectual property rights, such as
• digital photographs that have value;
• digital artwork that have value; or
• written work that have value.^[3]

In respect to digital assets and digital records careful consideration needs to be had as to what value can be attributed and how the assets or records should be transferred, sold or switched off in the event of death or incapacity.

Accessing your Digital Records or Assets on death or incapacity is dependent but not limited on the following:^[4]

• The value that can be attributed to the digital assets or digital record; and

• Whether the Digital Asset or Records could be transferred to a Beneficiary or Switched off

To determine what could occur with a digital asset or records on death or incapacity can in part be determined by

• Platform rules and their Terms of Service (TOS);^[5]
• Privacy regulations that prevent unauthorized account access after death or incapacity; and
• Copyright: rules that include owns a licence to use digital content, not the networking profiles

Upon death digital records do not necessarily automatically disappear, on the contrary accounts may remain active for years unless action is taken;

• Many assets in digital form you may have purchased may not necessarily be owned by you; despite the fact you may have paid money for them. You may have bought a licence for a specified term.
• Some licences can be bequeathed (passed onto someone else) as stipulated in an end-user license agreement.^[6]

Given the above, appointing a Legal Representative that is proficient and understands digital records and assets and has been granted the required authority to access the digital records and/or assets is paramount. This is the Executor upon death, or in the event of incapacity the appointed attorney under power.

Steps to consider in your Estate Plan involving digital assets or records include

• Preparing a comprehensive inventory of digital records and assets
• Outlining the value of Digital Assets and Digital records
• Appointing a competent digital executor or attorney under power
• Working out your specific digital records or asset bequests
• Providing powers of authority for the Executor and Attorney under power
• Ensuring platform terms have been correctly recorded in your Estate Plan

Furthermore, review your existing will regularly to ensure that it effectively meets your current wishes and objectives

• Checking if your Digital Executor in your will has the responsibility of handling your Digital Assets or Records as per your instructions.
• The individual or individuals appointed as your executor should be responsible, trustworthy and of good fame. They should also understand your estate and non-Estate assets and could execute your special Instructions

Pavuk Legal can assist you with a full range of legal services in respect to your Estate Planning needs regarding your Digital Records and Assets including preparation of your Wills and Power of Attorney.

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