As increasing aspects of everyday life move online, the proportion of assets existing solely in digital form continues to grow. For a significant number of UK individuals, a large portion of their estate may be ‘intangible’, i.e. in the form of a music library, email or a social media account.
Prior to the digital age, access to and knowledge of an asset’s location could usually be tracked down in conjunction with legislation on what should be done upon loss of capacity or death. Largely due to the continually developing nature of technology, the law surrounding online assets has comparatively not kept up and may, as a result, lead to confusion for those looking to protect their intangible assets along with those in the real world.
An estimated £25billion of UK assets are in online form. A large proportion, such as photos, social media accounts or files stored in the ‘cloud’ posess sentimental value. Various media such as music, e-books and photographs are now largely published online, as opposed to being present in the format of cds or hard copies.
Accounts including YouTube or gaming accounts may also possess value beyond sentiment and translate into a substantial monetary sum.
Thus, in order for any value to be obtainable for future generations, access to and the location of these assets must be made clear. The often-unclear position of law surrounding this, however, may make this a challenge for those looking pass on any digital property that makes up their estate.
There is no property right for information itself under English legislation. Rather than owning their content, individuals instead possess a ‘licence’ to use the services of a particular website.
This is under the Terms of Use which an individual must accept in order to create an account. The licence will often terminate upon death, being non-transferable, although this does depend on the service provider. Whilst the reasons commonly given for such conditions are largely privacy and confidentiality driven, they may conflict with an individual’s wish to pass on their accounts upon death.
Enacting legislation in this area has been attempted by the US, but has largely been rejected by numerous states. This law would allow access to digital assets being awarded to fiduciaries, but many oppose the concept that an executor would be able to displace the original holder of the account.
The UK has not seen the introduction of any similar kind of legislation. The only existing option for those in the UK,= is for the relevant service provider Terms of Use to be checked in relation to the user’s death. In regard to loss of capacity, it may prove even more of a challenge to transfer digital assets as their consent may be impossible to attain.
Although difficulties are faced in transferring online assets, there may be certain ways to make the process simpler for beneficiaries on an estate. Without the specific authority to access an account, anybody who attempts to do so may be in breach of section 1 of the Computer Misuse Act 1990.
It may be appropriate for clients to create a digital asset inventory which they regularly update. This could be stored privately alongside a will upon death. Any sensitive account details such as passwords should not be included in any wills due to their public nature upon death. There are, however, online inheritance accounts which have the ability to store such data.
Within a will, it is possible to include a clause which directly relates to any digital assets which possess sentimental value; any distributive instructions should be enclosed within a letter of wishes. Whether these are transferable depends upon the concerned Terms of Use.
Where online assets possess financial value, specialist treatment may be required in order to gain clarity over their legal position as well as any intellectual property rights which are associated.
To ensure the protection of intangible assets, backing them up onto an external hard-drive may also guard against any deletion from the service provider and preserve any accounts after death.
