UPDATE ! 27 March 2018
NSW is to become the first Australian jurisdiction to investigate whether new laws are needed to deal with access to a person’s digital assets after death.
The NSW Attorney General has announced that the Law Reform Commission will examine a range of laws including estate administration, wills, copyright and privacy and make recommendations for reform.
The review process is expected to take between 12 and 18 months.
So many aspects of our lives are now online – photos, memories, messages and even banking, but what happens to these digital assets after we are gone? Who will be responsible for closing or managing these accounts, and should your data be deleted or preserved? One of our Wills and Estates solicitors, Leora Tius, recently joined Radio National’s Life Matters program to discuss the importance and complexities of considering our digital afterlives.
What are digital assets?
Digital assets can include personal content stored on digital devices or online in numerous accounts including email, social media and digital wallets. For example, you may have a Facebook, Instagram, LinkedIn or Twitter account, as well as personal messaging services. Digital assets can also include online payment accounts like PayPal and cryptocurrencies like Bitcoin. These accounts can hold a huge amount of personal data, from family photos to large amounts of financial value.
Why do we need to consider our digital assets before we pass away?
Australia does not currently have any regulations to specifically deal with digital assets after death, which means that your accounts may remain live and potentially vulnerable unless you make plans and provide authority for someone to close or manage these. Without providing your explicit instructions for handling these accounts, you may create uncertainty, and force your family or executor to make some difficult decisions after you pass away. For example, many of us store and share our family photos and memories online. The individual terms and conditions of some social platforms can often require the closure of an account after the account holder passes away, which could result in the loss of all of those interactions, photos and videos permanently – even if you wished for these to remain for future generations to experience.
In the case of cryptocurrencies, you may have a substantial amount of value tied up in digital wallets or online accounts. By including your digital asset details in your estate planning documents and specific instructions in your will, you can ensure that these funds are distributed to friends or family as intended, rather than risk having them being lost and forgotten. Paper statements are used less frequently these days, and if your executor is blocked from accessing your online records this could cause unnecessary delays in finalising the assets and liabilities of your estate.
There are also security implications for the unmanaged social and digital accounts of people who have passed away. Without adequate preparation, you could be leaving your digital assets open to identity theft, fraud and trolling or spamming, which can certainly cause further trauma for your loved ones. Put simply, including a digital asset plan in your will is an additional way to protect your data and those you care about.
How to make a digital estate plan
You may already have a will in place, but if this does not specifically grant someone the power to handle your digital assets then there is a risk that these assets may be missed or not dealt with as you intended. We create wills for our clients every day and we encourage all individuals to consider how their personal data and digital assets will be dealt with after they are gone. We discuss and advise how to plan for this on an individual basis, as each person will have their own specific requirements and instructions for their estate.
We can help you to create a detailed list of which online accounts you have and how each of these are to be managed. For example, would you prefer your personal emails and messages to be preserved or permanently deleted? How would you like any digital currencies to be distributed? We would suggest that you provide details of how to access your digital assets and accounts to your lawyer to store safely with your will. You should also discuss with your lawyer how to consider the terms and conditions that particular social media platforms have in place to manage accounts of those who have passed away.
Anything that you have digitised can survive long after you’re gone, yet with a little prior planning you can have some control about what should stay and what should go. Digital afterlives are an evolving issue but one thing is certain – in a world where so many aspects of our lives are increasingly online, it’s important to consider your digital assets when preparing your estate plan.
Atkinson Vinden Lawyers are here to help you prepare for the future. Contact our Wills and Estates team to arrange an appointment.