Your will and the digital age

Having an online presence and not dealing with this when making a Will can cause heartache, draw out the grieving process and lead to administrative difficulties. When making a Will, relatively few people think about the technicalities of how their Will will be administered after they are gone. This is demonstrated by the fact that whilst 74% of us have online accounts of some description, it is estimated that only 25% have planned what to do with those accounts after they die.

Leaving details as to the whereabouts of online accounts and other online assets and interests can save a significant amount of time and trouble for your loved ones. Anthony Kalp of Berry & Lamberts Private Client team explains further.

In May 2019, it was reported that Rachel Thompson had spent three years and paid out thousands of pounds in her fight to open the Apple account that held 4,500 photos and 900 videos taken by her husband. Her husband, Matt, had taken his own life in July 2015 but didn’t leave a Will. Mrs Thompson wanted access to images that would help their ten-year-old daughter, Matilda, to remember her father. Apple maintained that in the event of a deceased user not making it clear what access others should or should not have to an account, it would release the documents only under a court order despite Mrs Thompson having a Grant of Probate proving that she was his executor.

Apple’s terms state that user accounts are non-transferable and that rights to content ‘terminate’ on your death unless otherwise required by law. A court order must be obtained for Apple to transfer accounts to a user’s next of kin, which is an expensive and lengthy process.

To prevent the need for this, lawyers advise making ‘digital wills’ that identify Executors who can manage your digital estate.

Even social media and blogs can prove to be a source of upset for those we leave behind. Without suitable access, your loved ones may be unable to delete them or perhaps create a memorial on them, if so desired. Of far greater concern is the risk that these social media accounts may be accessed and used by hackers, whilst still bearing your name. Without knowing of its existence, your beneficiaries may be powerless to take the appropriate action.

You may perhaps have thought about what you want to happen to your social media and other online accounts when you die. However, if you have not recorded your wishes regarding these social media accounts, it will become a matter of guesswork for friends and family.

Many of us also keep contact information online. This may add to the administrative burden for your legally-appointed personal representatives as they endeavour to track down your beneficiaries.

Making a Digital Legacy

Many people dealing with Probate will experience some or all of the above problems managing online accounts. However, with legal advice it is becoming a lot easier to construct a digital legacy when writing your Will.

You can make a gift of a digital asset (such as an online bank account or personal photographs) in your Will, and even appoint a specific digital executor if needed.  The executor should be given specific powers to access your digital devices and deal with your digital assets.  However, your online banking details, user names, passwords or security question answers must not be mentioned in the Will; after Probate has been granted, the Will becomes available to the public, and that would clearly cause all manner of security problems.  Such details should therefore be kept in a separate memorandum.  The memorandum should list your social media accounts and access details, and, obviously, should be kept securely.

Many people with a smartphone or social media also store information and photographs online. These may be lost unless you ensure that somebody else is aware that they exist and where they are located. As with many online accounts, such cloud storage is personal to you. It is therefore up to your personal representatives to contact the organisations managing these accounts in order to try and gain access to these. Such organisations usually have their own policies and processes in place in order for these to be accessed after your death. For example, Facebook now offers a legacy feature so that someone can post a last status update for you after you pass away. This may offer some level of comfort to grieving friends and family. However, please be aware that in the digital world it may be the case that ownership of music files, for example, is provided by license to the account holder. This means that only the account holder has the right to listen to the music during their lifetime so it cannot be bequeathed to anyone else upon death.  Also, many of these organisations are located in different legal jurisdictions, which may have different legal processes to navigate.

Even then, Apple says that it cannot access a deceased person’s photos if they are stored on a smartphone or tablet and not uploaded to the cloud. In these cases, it cannot transfer access even with a court order.

The majority of utility services and phone contracts are now managed online, so you will also need to remember to include a list of the companies you hold accounts with. This will allow your personal representatives to make contact and to arrange for the accounts to be closed.

If you are the personal representative and are dealing with the online affairs of someone who did not leave the relevant details, you may still be able to access the required information. If possible, check their bank statements to see which companies they were making payments to, for example by direct debits or standing orders. Alternatively, if you share access to their computer or laptop, check their web browser history as this may tell you which websites they had been routinely using. This will allow you to contact the relevant organisations in order to settle and close any accounts. A digital legacy will avoid the need for forensic activity in identifying organisations and accounts and could save thousands of pounds.

However, none of this will mean anything unless you let your beneficiary or personal representative know where to find it. Given the sensitive nature of the information it will contain, it is advisable to store it in a secure location. Ideally, the firm who hold your Will for safe keeping. You will also need to provide updates to include any new online accounts; however there should be little or no cost for you to do this with a professional provider as it doesn’t involve a change to your actual Will.

Berry & Lamberts Solicitors are able to assist. Should you wish to discuss accessing an account or obtaining a court order, please contact our Commercial and Dispute Resolution Team on 01892 526344 or email Paul Reader, Managing Partner, at preader@berryandlamberts.co.uk

If you would like to make a Will and lodge a legacy document with us please contact our Private Client Team on 01892 526344 or email Anthony Kalp at akalp@berryandlamberts.co.uk

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice.  The law may have changed since this article was published.   Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.