What happens to our digital wealth upon death?
Friday, October 05, 2018
When drafting a will, something that is often overlooked is what will happen to your digital wealth after your death.
Digital wealth is difficult to define given the expanding nature of our digital involvement, but can include online businesses, social media and other online accounts, crypto-currencies, music, photos and files stored online. Our level of digital wealth is expanding both in overall size and in the variety of platforms in which it exists, and it is therefore essential to consider how we would like this to be dealt with in our wills.
However, while our lives have become increasingly digital, this is not always reflected in our attitude towards our wills and estates. In determining what will happen to our digital wealth after death the first question to ask is whether the property is stored on a device or online (ie on a cloud). If information is stored on a device, then this can easily be gifted in a will by gifting that device.
If on the other hand the information is stored online then the situation is more complicated. Often we do not strictly ‘own’ information we have stored online, and therefore what can be done with that information following our death may be subject to the terms and conditions of the particular online platform in which it is stored. If we do not own the information then we cannot gift it in a will and family members may even encounter difficulties in accessing our accounts after we die.
Adding to the complexity of what will happen to our digital wealth is the lack of legislation in Australia governing this area. Essentially, digital wealth is treated the same as physical wealth, which can be problematic given its intangible (non-physical) nature. Additionally, jurisdictional issues arise because it is not always clear in which country or jurisdiction online information is stored and therefore which country’s law ought to apply.
Given the unresolved complexities surrounding digital wealth, lawyers and clients alike should be aware of what can and cannot be done regarding including digital wealth in wills and should ensure they include adequate provision for what should be done with digital assets and accounts upon death. Documents such as letters of wishes, lists of accounts and password records should be kept and updated regularly to enable family members to carry out your wishes easily and the most minimal degree of stress.