Many people don’t consider their digital assets when planning their estate, but they should. Digital assets can hold significant financial and sentimental value, and it’s important to plan for who they will be managed after death.
Your digital assets include online businesses, social media accounts, online bank accounts, email accounts, and platforms such as eBay and PayPal, as well as blogs, domain names, music, photos and other files stored online. Digital assets also include information stored electronically on devices, online, in the cloud or on physical hardware.
You may wish to gift certain digital assets to specific beneficiaries in your Will. For example, you might want to provide a particular person access to your photos stored online, or access to material you have curated but not published, or instructions for certain online accounts to be closed or deleted following your death.
Without an effective estate plan for your digital assets, a number of issues can arise, including:
digital assets may be forgotten, and data may be lost or accessed without authority;
difficulties for family members seeking access to your digital assets; or
online accounts becoming permanently inaccessible.
Incapacity
Planning for digital assets is also important in the event of incapacity, not just death,
You should consider appointing a trusted person to manage your digital assets if you lose capacity. This can be done by including specific instructions in an enduring power of attorney, so your online affairs can continue to be managed appropriately.
The current legal landscape
As digital communication and online services are becoming increasingly international, many platforms are governed in jurisdictions outside of Australia. For this reason, it is important to not only include digital assets in your estate planning, but also to review the terms and conditions of your user agreements with your online service providers. Some platforms have specific requirements on death, and providers based overseas may not necessarily act on or be bound by Australian documents.
Many digital assets we all have and regularly use are not actually owned by us. Instead, we often have a license to use our accounts on these platforms which can expire on death. As a result, some digital assets that appear to be personal property may not be transferable under a Will.
Given the uncertainty in this area, managing digital assets after death or incapacity can be complex. We recommend putting a plan in place with an estate planning specialist to ensure your executors or attorneys have documents available to them that can either allow for their access or provide evidence of their authority to then obtain a court order for access, if this becomes necessary.
