The loss of a loved one is an emotionally challenging time. It is not made easier by the difficulties that surround the digital assets that we increasingly hold.
Much of our lives are now lived online. Banking is increasingly digital, photographs are more commonly held on mobile devices, we have multiple streaming services, social media accounts, we communicate via email alongside multiple subscription services from smart doorbells to food delivery.
We are password-protected, often with two-stage authentication, across multiple devices that touch all aspects of our lives. Some of these digital assets will be of significant financial value with others having irreplicable sentimental value.
Whilst the pace of change can be exciting and often bewildering, the law has not kept pace. The law recognises, for example, that a digital asset can be owned but not possessed – the legal concept of possession is limited to physical things. The terms and conditions we agree to when opening an account or taking a subscription will often cease on our deaths.
And that can cause significant challenges when a loved one dies and you wish to access precious photographs or access email messages.
Many of us will have created a Will that states what happens to our estate on our death. Whilst executors of a Will can easily provide proof of death and manage physical assets, such as a home or jewellery, the same cannot be said of digital assets.
There is, however, some good news, however. Both Facebook, Google and Apple offer legacy services.
Apple’s digital legacy feature will allow a few specific individuals to access the account of a loved one to take copies of photographs. Facebook allows an account to be permanently closed or memorialised. Instagram, despite being owned by Facebook, offers no such option.
The challenge even with those platforms that do provide legacy services is that they must be established by the user whilst still alive. Most of us are unaware of them.
Protecting your digital legacy
The starting point in protecting your legacy after death is by having an up-to-date Will. It is a good idea to create what is called a ‘letter of wishes’ that sits alongside your Will that lists all of your digital accounts, with usernames and clear instructions on what you would like to happen to them.
At the same time, understand the relevant rules and options for the various social media platforms you use and where you can adopt their legacy protocols. Understand too that some platforms, Twitter/X being one notable example, will automatically cease on death meaning any images or messages will be permanently lost.
It is often recommended that any precious or sentimental images are downloaded or backed up to a cloud service that is shared with other family members.
Then there is the difficult question of passwords. It is of course possible to list all passwords alongside the usernames in any letter of wishes, but that is likely to be in breach of the terms and conditions of service. Passwords also have a habit of changing regularly.
The law has not kept pace with technology, but it is changing albeit slowly. Family members cannot, however, assume they will have access to the online lives of loved ones and should take steps to protect those precious and sentimental online legacies.
Contact our Private Client Solicitors
If you have questions surrounding your digital legacy contact or are in need of advice or assistance on any of the legal issues mentioned in this article, please contact Olivia Meekin, Partner or any member of our experienced Private Client team on 020 7631 4141 or email privateclient@bishopandsewell.co.uk
The above is accurate as at 29 January 2024. The information above may be subject to change.
The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.
