Business during COVID 19 - see here for more details

Does your estate planning adequately deal with your ‘digital assets’?

In today’s world not only do we have traditional and tangible assets, like motor vehicles, bank accounts, land and investments, but many people also have ‘digital assets’ (DA’s).

Deciding how you want your DA’s distributed, controlled, archived or removed after your death (or incapacity) is an important estate planning consideration, and you may need to take steps to ensure effect is given to your wishes and intentions.

DA’s are anything you own that is created, recorded, transmitted, or stored digitally rather than physically, including:

  • files and records you keep in a computer or other digital device (e.g. tablet or phone) or online e.g.: digital photos, audio clips, e-books, digital movies;
  • subscriptions, online accounts (including email);
  • websites and their content;
  • online businesses records and data;
  • digital currency, and digital currency accounts (such as bitcoin); and
  • private social network accounts.

Some of these things are only sentimental, others can be of significant monetary value, and you may want to leave them in the control or ownership of others.

However, access to some digital assets (e.g. online accounts) may be dependent on the terms and conditions of the service provider (many of which are in overseas jurisdictions) and they may be constantly changing. Such terms and conditions may not permit others to access your accounts after your death or incapacity.

Due to the nature of digital assets, it may be the case that you do not have ownership in the asset you wish to gift. If this is the case, the gift may fail, and your beneficiary will not receive the benefit you intended them to have.

Those person/s you want to benefit from or control your DA’s may not be able to deal with your DA’s if your estate planning has not specifically empowered them to do so, or they may be unable to access your DA’s because you have not left enough information for them.

We have encountered issues such as:

  • DA’s which earn revenue (e.g. blog accounts and online business accounts) decreasing in value if a plan for the business had not been left so that its value and reputation suffer as a result of the DA’s being left unmonitored or unattended;
  • deceased or incapacitated persons’ social media accounts being left open causing family conflict and upset;
  • DA’s intended to benefit others (by gift in a will for example) cannot be transferred, or even properly identified and found!;
  • friends and family being unclear as to a loved ones wishes because specific instructions were not left.

We recommend you:

(a)          consider whether you should specifically appoint someone in your estate planning documents (i.e.,your Will and EPA) to deal with your DA’s;

(b)          consider granting power of access and management of your DA’s to nominated person/s;

(c)          maintain a DA register which you keep as a separate document with your Will and EPA with details of and/or instructions to access your DA’s. It could for example, be kept by your solicitors in safe custody in a sealed envelope with your will and EPA only to be released on your death or incapacity. It could be updated and replaced overtime; and

(e)          leave instructions, or discuss with those you trust, which of your DA’s you would like deleted or shut down.

If you or someone you know wants more information or needs help or advice, please contact us on (07) 5443 4866 or email advice@gwlaw.com.au.

If you need help, or have a question get in touch with us today.