Apple officially released its ‘Digital Legacy’ feature on 13 December 2021. This permits individuals who have been nominated by the deceased to access the deceased’s accounts and data after their death. Diva Shah examines the impact of this new feature and its implications for Private Client practitioners in matters of estate planning where digital assets are involved.

What are the main legal and estate planning issues to consider where a deceased has left digital assets?

There is no definition of what constitutes a ‘digital asset’ and in reality it means any object that has monetary and/or sentimental value and exists only in electronic form, such as a digital photograph, an email account, an internet domain name, a video-game item, or a cryptocurrency like Bitcoin. The law recognises that a digital asset can be property and that a digital asset can be ‘owned’. However, it does not recognise the possibility that a digital asset can be ‘possessed’, because the concept of ‘possession’ is currently limited to physical things. This has consequences for how digital assets are transferred, secured and protected under the law. Cryptocurrency is also dealt with slightly differently; they blur the distinction between information and assets, because the asset can only be accessed through the information of the passkey.

Most digital assets will pass via the Will. With physical property, possessions, money and investments, it is easy for the executors to provide proof of death and take control of those assets on death. Digital assets present more of a challenge because the digital legacy may be owned by the individual or the online service provider that is used. The first step is identifying the assets and providers. Each online service has its own policy which needs to be adhered to. The other complications are login details, usernames and passwords and how the assets will be accessed and managed. Lastly, the executors will need to consider if there are any value to those assets, which will then require them to be reported to HMRC.

What changes have Apple introduced through the digital legacy feature?

Apple’s Digital Legacy feature, which was announced in June 2021 and officially released in December 2021 lets people choose the specific individuals (up to five family members or friends) who will be able to access their account after they die. These chosen contacts will be able to access data stored in iCloud (data such as photos, documents and videos) after the user dies, provided they have a special access key and a copy of the death certificate. Importantly, individuals need to set this up in advance. The feature is accessed through Settings>Password & Security>Legacy Contact on the iPhone. An access code will be received which needs to be kept in a safe place. The selected contacts will need this code to access the account on the user’s death.

Do any other providers of digital services have schemes to address what happens on a user’s death?

There is no consistency between how different internet providers and social media platforms act on a user’s death. Each provider has a different approach to dealing with accounts of deceased people; some will require the grant of probate from the Probate Registry, others will allow individuals to pre-determine and pre-plan their wishes, and some will simply act on production of a death certificate.

LinkedIn offers options for those authorised (by a grant of probate from the Probate Registry) to memorialise or close a deceased member’s account.

Facebook has pre-planning choices and will act on the production of the death certificate; the account can be permanently deleted; it can be memorialised and a Legacy Contact can be appointed; or it can be turned into a tribute page. If a person does not utilise the legacy planning features, Facebook’s default is to memorialise the account. Despite Instagram being owned by Facebook, the two platforms differ; there are no pre-planning tools and no Legacy Contact for Instagram. If an Instagram account holder passes away, there are two options: memorialisation or deletion and Instagram would act on the production of the death certificate.

Twitter has only one option on death; the account can be closed and if this is not chosen, then the account lives on in perpetuity. There is no mechanism that allows an individual to inform or alert Twitter that someone has passed away, other than the more formal path of requesting an account be deactivated.

Google is one of the only other social media platforms that currently offers any legacy and pre-planning tools and features thought its Inactive Account Manager which allows individuals to pre-determine what happens and who is authorised to receive this information.

What practical steps should Private Client practitioners advise their clients to take in respect of the digital assets in their estates (for example, are there any risks if individuals leave their log in or access details to heirs if this contravenes the provider’s terms and conditions)?

This is a developing area of law, but there are some practical steps that can be taken. Firstly, clients should ensure they have a Will and an inventory of their digital assets. This should be a complete list of all digital assets and accounts with usernames. Ideally, this should be stored in a letter of wishes stored alongside the Will and updated frequently. This may also be known as a Digital Assets/Social Media Will.

Clients need to consider who would be best placed to deal with their digital assets. This may not necessarily be the executor and they may choose to nominate someone who is more tech savvy or has a better understanding of the individual’s life and wishes. For example, if a law firm has been appointed as executor, they may not necessarily be best placed to then deal with Facebook memorials.

Clear instructions should be given about how each platform should be dealt with. If the service provider provides an option to memorialise the account, individuals should make their wishes are clear (for example, is the intention for their social media life to live on) and provide any particular message that they would like to leave to friends or followers. Where pre-planning is available on platforms such as Facebook or Apple, individuals should ensure they have taken advantage of these measures.

There is, of course, the issue of how to deal with passwords. Individuals could quite easily leave the password details in a letter of wishes, however, since passwords change all the time, this could be left in a password manager or database. Caution needs to be exercised in respect of passwords. Use of a password after the death of the individual could be a criminal offence of unauthorised access and may breach a service provider’s terms and conditions; and may prove ineffective, for instance if passwords change or two-factor authentication is required. The best way to pre-plan for significant digital assets is to assume that passwords will not be available.

What steps should executors take in relation to the deceased’s digital assets and are there particular issues that they need to be aware of?

The first step for executors will be identifying the digital assets; this may be in the letter of wishes but if not, then they will need to attempt to identify and locate, which can be time consuming. If there are instructions or any pre-planning was undertaken then this should assist with managing accounts but in the absence of any clear instructions about how social media should be dealt with, executors will need to decide whether accounts are closed or memorialised and if so how these are handled. As set out above, executors will also need to be weary of the use of any written passwords to access accounts.

This analysis was first published on Lexis®PSL on 21 January 2022