SAIF Golden Charter

Digital life after death

Our treasured memories and possessions used to be easily stored in our houses and bank accounts. Now, in this digital age, what will happen to our belongings when we die?

From photographs to email correspondence, music purchases to online banking, we all want to pass our property and our belongings down to loved ones.

The Law Society has urged people to leave clear instructions about what should happen to their emails, investments and social networking sites to make it easier for families to piece together your digital legacy, save time and money and adhere to your wishes.

However, the development of technology is well ahead of law and policy in the area of digital media. The online rules are still being debated and written, leaving a rather gaping hole in terms of rights.

In August 2015, Mark Zuckerberg, the founder of social networking giant Facebook, announced that one billion people used the site in a single day. This meant that one in seven people on Earth used Facebook to connect with their family and friends.

Meanwhile, social network rival Twitter recorded an average of 313 million monthly active users in the second quarter of 2016.

These social media outlets contain vast amount of information and are constantly being updated; tracking the course of someone’s life, with pictures and announcements. Facebook has now decided to ‘memoralise’ these pages.

According to Facebook: “Memorialised accounts are a way for people on Facebook to remember and celebrate those who have passed away. You can tell us in advance whether you’d like to have your account memorialised or permanently deleted from Facebook.”

Once the user has passed away, the account will include the word ‘remembering’ next to the person’s name on their profile but no one can log on to the memorialised profile.

Access to these sites will be a growing problem for the next generation with many young families now sharing and storing pictures almost exclusively online, leaving a large question – will children be able to have full rights and access to their own childhood photographs when their parents die?

Douglas Houghton, from Irwin Mitchell, specialises in Wills, trust and estate disputes.

As an Associate Solicitor, Douglas deals with a wide range of disputes arising from challenges to the validity of Wills and the interpretation of Wills and trusts. He admits that digital legacies are a growing concern within the legal industry.

“It is quite a difficult area of law as people can leave behind a massive digital footprint without realising it and it can have really serious consequences,” commented Douglas.

“When it comes to personal and sentimental items, people need to be more aware of what will happen to their pictures and videos if they only store them online. You need to think about what access you are leaving for your loved ones.

“It may be sensible to highlight any accounts in a separate document which would be stored with your Will. From time to time this may need to be updated.”

To guarantee these assets will not be lost, it is good practice to have hard copies of all information stored online.

What if items have a monetary value? Online banking is a growing industry with many deciding to stop receiving paper bank statements, leading to estate executors having to dig for information.

Other financial assets could even be in the form of special insurances, store clubcards, and even the purchase of online currency Bitcoin.

The person who dies may also have had an extensive digital collection of music, games, films and books. All of these are assets but without written instructions these might be withheld from the next of kin.

Douglas added: “Although it may be good practice to back up your documents, you have to be careful. “For example, you may be in breach of the applicable terms if you reveal sensitive details about your account, and certain associated insurance policies may be voided as a result. However, if you pass away your loved ones might not have access to your files or know you have that policy.

“There is no one solution for dealing with it as each digital policy is different. The best bet is to keep up-to-date with all your information.”

In terms of other assets, Douglas said: “Technically, when we purchase music from online stores, such as Apple’s iTunes, we only lease the music. That means when we die, it may not be possible for our collection to be passed on.

“Overall, it depends on the individual account and the terms and conditions of a particular website. When it comes to something like Tesco Clubcard points, that people accumulate over time, if we don’t leave our account details and passwords for the next of kin, it can be very difficult to gain access.”

Another complicating factor is that many of these online businesses that store customer details are not based in the UK.

When you agree to the terms and conditions of a website you agree to follow their own rules. A high number of these companies are based in the US and their policies are based on the laws and regulations of the country or state, a situation that can be very confusing if an individual wishes to contest an issue. Speaking about the cross-country boundaries, Douglas added: “It is an added complication with laws for these companies being based in other countries.

“I think we will see a swift rise in disputes, especially with information on accounts such as Facebook and Twitter.

“There is a lack of authority in the area of digital legacy and it makes it very difficult to advise clients when the case law isn’t available. The starting point is to go to the terms and conditions of a particular account and look at their agreements, however for executors we need to know these accounts exist first of all.”

Online assets are being increasingly viewed as an important subject and many solicitors now include a clause about them in new Wills. Failing to make a note of these accounts could cause future legal issues for your loved ones.