The digital afterlife: a guide to digital wills and legacies

Our lives are increasingly intertwined with the online world. We create, share, and store vast amounts of information and assets digitally. From social media accounts and emails to photos, videos, and even cryptocurrencies, our digital footprint has become integral to our legacy. But what happens to these digital assets when we pass away? This is where the concept of digital wills and legacies comes into play.

Understanding digital assets

Digital assets encompass a wide range of online possessions, including:

1. Digital records: These are personal items like photos, videos, documents, and other files stored on electronic devices or in the cloud.
2. Digital property rights and interests: These cover intellectual property, copyrights, domain names, online accounts, and virtual possessions.

Understanding the distinction between these two categories is crucial. While digital records might seem like personal belongings, they often lack clear ownership rights and might not be transferable after death. On the other hand, digital property rights can hold intrinsic value and can be passed on to beneficiaries as part of a formal estate.

Challenges in dealing with digital assets

Several challenges arise when dealing with digital assets after death:

• Ownership and access: Many online platforms operate on a licence-based model, granting users access to content rather than ownership. This can complicate the transfer of digital assets upon death.
• Terms of service: Each platform has its own terms of service that dictate what happens to accounts after a user’s death. Some allow for memorialisation or transfer of ownership, while others might automatically delete inactive accounts.
• Security and privacy: Ensuring the security and privacy of digital assets is paramount. Sharing passwords or access information can be risky, and data breaches or identity theft are potential concerns.
• Legal framework: The legal landscape surrounding digital assets is still evolving, and there is a lack of clear legislation in many jurisdictions, making it crucial to seek professional legal advice.

The role of digital wills

Understanding digital wills

A digital will is a legal document that outlines your wishes regarding your digital assets after your death. It can include:

• Inventory of digital assets: A list of your online accounts, including usernames, passwords, and security questions.
• Instructions for each asset: Instructions on whether to delete, memorialise, or transfer each account.
• Digital executor: The appointment of a trusted person to manage your digital assets according to your wishes.

Sample clauses

Definition of digital assets

Digital assets include files stored on my digital devices, including but not limited to desktops, laptops, tablets, peripherals, storage devices, mobile telephones, smartphones, and any similar digital device. This also includes emails, social media accounts, financial accounts, software licences, and domain registrations.

Digital assets clause

My executor will have the power to access, handle, distribute, and dispose of my digital assets.

Digital executor clause

I authorise my executor to engage [name of person] to assist in accessing, handling, distributing, and disposing of my digital assets.

Memorandum clause

I have prepared a memorandum with instructions concerning my digital assets and their access, handling, distribution, and disposition. I direct my executor and beneficiaries to follow my instructions concerning my digital assets.

Key considerations when creating a digital will

• Clarity and specificity: Use clear language and specific instructions to avoid ambiguity.
• Regular updates: Review and update your digital will regularly as your online presence and digital assets evolve.
• Secure storage: Store your digital will and account information in a safe and accessible location.
• Legal consultation: Seek legal advice to ensure your digital will aligns with your overall estate plan and complies with relevant laws.

The role of iOS and Android in managing digital assets

Both iOS (Apple) and Android (Google) offer features that help manage digital assets, which can be useful components of a comprehensive digital estate plan.

iOS (Apple) features

1. Digital legacy programme
   • Apple’s digital legacy feature allows users to designate up to five legacy contacts who will have access to their digital data after death. These contacts can retrieve data such as photos, messages, documents, and more stored in iCloud.
   • To add a legacy contact, users can go to Settings > Apple ID > Sign-In & Security > Legacy Contact and select trusted individuals.
2. Memorialisation of Apple ID
   • Legacy contacts can request access to the deceased person’s account by providing a legacy contact access key (shared by the deceased) and a death certificate.

Find out more.

Android (Google) features

1. Google inactive account manager
   • Google’s inactive account manager allows users to specify what happens to their data after a period of inactivity. You can choose to share your data with up to 10 trusted contacts or have your account deleted.
   • To activate this feature, go to My Account > Data & Personalisation > Make a Plan for Your Account.
2. Requesting access to a deceased user’s account
   • Family members can submit a request to access a deceased user’s Google account. This requires a death certificate and following Google’s established process for reviewing the request.

Digital vaults

Another tool for managing digital assets is digital vaults, which securely store important information such as passwords, financial accounts, legal documents, and personal data. Users can designate trusted individuals to access the vault after their death.

Some popular digital vault services include:

• 1Password, Dashlane, and LastPass: These tools store credentials and allow users to share access to accounts with trusted contacts.
• Everplans: A digital vault that helps users organise and store documents like wills, trusts, insurance policies, and passwords.

Memorialised accounts

Many platforms offer the option of memorialising accounts after a person has passed away. A memorialised account allows the profile to remain online while disabling logins or other changes to the content. For example:

• Facebook offers the option to memorialise an account, turning it into a place where friends and family can share memories. It also offers the ability to appoint a legacy contact who can manage specific aspects of the memorialised profile.
• Instagram similarly offers memorialisation options, preventing the account from being deleted but preserving the posts and comments made during the person’s lifetime.
• LinkedIn and X: These platforms also allow loved ones to request account memorialisation or deletion, though the process varies in complexity.

The future of digital legacies

As technology continues to evolve, the importance of digital wills and digital legacies will only grow. Legal frameworks will likely develop further to address the unique challenges posed by digital assets, ensuring clarity and proper management in the years to come.

How ITLawCo can help

At ITLawCo, we understand the complexities of managing digital assets in an increasingly interconnected world. Our team of legal and technical experts is well-versed in the challenges surrounding digital estates, from creating robust digital wills to navigating the evolving legal landscape. We offer advice tailored to your unique needs, ensuring that your digital legacy is handled efficiently and in accordance with your wishes. Whether you need guidance on structuring a digital will, navigating platform policies, or ensuring compliance with current laws, ITLawCo is here to support you at every step.

Get in touch with us to secure your digital future and protect your digital assets for the generations to come.