How Digital Assets Are Dealt With In Estate Planning
Solicitors and other professionals tasked with assisting clients with their Estate Planning needs are now dealing with the issue of digital assets.
What Constitutes “Digital Assets”?
“Digital assets” is a very broad term and includes the following;
- Social media accounts
- Crypto currency
- Photos
- Email accounts
- Domain names
Issues With Digital Assets
Some of the more common forms of digital assets and the issues associated with them are detailed below:
- Facebook – “authorised person” can request page be deleted or memorialised (and contain a link to obituary)
- Google – “Inactive Account Manager” takes control if the account is inactive for 3 months
- QANTAS – Frequent Flyer points are lost when someone dies
- Virgin – Legal Personal Representative can access frequent flyer points but only within 12 months of a person’s death
- Cryptocurrency – Sensitive token information may be lost
Do Digital Assets Constitute “Property”?
There has been a lot of discussion within legal circles as to whether digital assets constitute “property” and are therefore capable of being disposed in a Will. The prevailing view is that digital assets are property, although not tangible property, and can be disposed in a testamentary document.
How Should Digital Assets Be Dealt With?
In South Australia the Will of a deceased person is a public document and, on Probate being granted, the Will is available for viewing by any person. That being the case, sensitive information about the digital assets should not be detailed in the Will.
The digital asset can be bequeathed in a Will but without providing sensitive information, such as passwords, token numbers etc. This information can be set out in a separate Letter of Wishes stored with the Will for the benefit of the Executor, and perhaps in a sealed envelope with instructions not to be opened until the Will-maker has passed away.
Article by Mark Lumley
Mark Lumley is the Principal Solicitor at 360Private Legal, with many year’s experience in Wills and Estates, Succession Planning, Retirement Village contract advice, commercial leases, specialised trusts and conveyancing.