Create your digital will

Legally pass on your assets: checklist inside

There’s nothing like a pandemic to make us confront our mortality. Most of us of a certain age will likely have documented what we’d like to happen to our house, savings and other tangible assets when we expire, but far fewer have given any serious thought to what happens to their digital estate.

Your next of kin might inherit the laptop left on your desk, but would they be able to get any further than the login screen? What happens to the decades of family photos and videos you’ve got stored on that computer and online services? What about your digital music collection, the money in your PayPal account, the shares you bought, the £400 in your online gambling account? Does anyone but you know how to access this stuff? Does anyone know it even exists?

Fail to create a digital will and there’s a good chance all of this stuff will disappear, robbing your family of precious memories and potentially precious assets. At the very least, they face a tortuous process involving court orders to try and retrieve them, with no guarantee of success.

There’s the flip side to consider too. What if you don’t want your family to have access to your emails, photos and other digital files? Terry Pratchett famously requested that the hard disks containing his unfinished novels were to be destroyed by steamroller when he died, a request that was faithfully carried out in 2015. If you fail to stipulate what happens to your digital estate, it’s out of your control.

Creating a digital will is the only sensible course of action in an age when so many of our possessions are stored online. We’ve spoken to legal and technology experts to find out exactly what you need to do, what you definitely shouldn’t do, and what might happen if you fail to act.

What is a digital will?

In some ways it’s misleading to even talk about a digital will because your digital assets should really be thought of simply as assets that you would account for in any will and testament. Ian Bond, a member of the wills and equity committee at The Law Society, says he wouldn’t encourage people to be putting details such as usernames and passwords in their will, but does encourage people to include clauses that cover their digital assets “so that your executors know that you have digital assets and you want them to deal with them”.

Although you might not include it with your actual will, the Digital Legacy Association provides a template on its website for a social media will, in which you stipulate which online accounts you have, the username and how you want that account to be managed in the event of your death. As the website states,

“due to the nature of the internet and each online platform’s ‘terms of service’ it is often impossible for people’s online wishes to be legally binding”, but it does give your family and friends an indication of how you want such matters dealt with.

The notion of leaving a social media will might sound daft, but when you consider websites such as Facebook are repositories for now decades’ worth of photos, videos and other memories, it’s arguably sillier not to think about what will happen to those accounts. “My housemate from university died from sudden adult death syndrome,” said James Norris, founder of the Digital Legacy Association. “His Facebook account means more to me than where his ashes are scattered. I go there to look at the photos and messages. Will that be there in 50 years? I don’t know.” Norris is also the founder of

mywishes.co.uk, a site that helps people with the process of making a last will and testament, as well as creating a digital will. The “My Online Accounts” section of the service, for example, lets you stipulate a site, the email address/username you have registered with that site and what you would like to happen to that account when you die. That log can then be downloaded or emailed to someone who you appoint to look after your digital estate, so there’s a clear record of your wishes.

How social media deals with death

The way in which social media firms handle the death of their members varies greatly from service to service.

Facebook, for instance, has given the matter considerable thought. If you go to Facebook’s main settings menu, memorialisation settings appear in the top menu. Here you have the option to appoint a “legacy contact” who can tend to your memorialised Facebook page when you die. This page will have the word “Remembering” next to your name in the profile, will stop your account appearing inappropriately on other timelines (such as reminders to greet you on your birthday), and will retain all your photos and posts for family and friends to look back on. Your legacy contact will be able to moderate tributes posted to your accounts, remove tags of you that

THERE’S OFTEN NO GUARANTEE THAT DATA WILL BE PRESERVED ONCE THE ACCOUNT BECOMES INACTIVE

someone has posted and even update your profile photo.

If you’d rather your Facebook account died with you, you can simply choose to have your account deleted when someone notifies Facebook of your death. Facebook even sends an annual reminder to check on legacy settings, making sure that your legacy contact isn’t a now remarried ex-spouse, for example.

The Law Society’s Bond says solicitors are now prompting people to change these settings when drawing up their wills. “What we’re saying to clients is you actually need to go and do something,” he said. “You need to actually go back home after the meeting, after signing the will, go into your settings on Facebook and set out what you want to happen.”

Twitter, in contrast, is still at a loss at how to deal with its millions of dead members. In November 2019, Twitter announced plans to automatically close accounts that had been inactive for six months, sparking an outcry from the relatives and friends of deceased account holders who take comfort in reading back old tweets. Twitter immediately backed down and promised to “create a new way for people to memorialise accounts” before it started auto-deleting them. At the time of writing, more than a year later, that still hadn’t happened. Whether you like it or not, your Twitter account will currently keep rolling in perpetuity when you die, with no indication that you are no longer with us.

The rest of your online estate

Of course, it’s not only social media sites that contain assets or data you may wish to preserve. A quick scan through your password manager (you do use a password manager, right?) will likely reveal accounts with dozens of different services. You may not care what happens to many of them when you’re gone, but others could contain photos, videos and even a library of work of monetary value that you wish to be preserved or passed on to family and friends.

The big problem here is that each service will have different ways of handling the accounts of their dead members – there’s no uniformity and often no guarantee that data will be preserved once the subscription stops being paid or the account becomes inactive.

Let’s look at some of the major players. In a similar vein to Facebook, Google has an Inactive Account Manager ( myaccount.google.com/

inactive) that allows you to stipulate what Google should do if your account becomes inactive after a userdetermined period of between three and 18 months. You can add up to ten people who Google will notify if your

account becomes inactive and who can be given access to your data – you get to pick from a very long list of Google services that you wish to bequeath. You can even set a slightly ghoulish, personalised auto-reply to emails that arrive after your account has lapsed into inactivity (“Gordon is out of the office until, well, forever…”).

Alternatively, you can instruct Google to delete your account, taking your email, photos, YouTube videos and other content with it. That will happen three months after your account goes inactive. If you’re going to do that, it’s definitely worth having a conversation with your family members/will executors first because it would cause upset if they contact Google to try and retrieve, say, family videos only to find you ordered them to be deleted.

Others take a much more hard-line approach. Apple’s terms of service for iCloud, which covers purchases made on your Apple account, state clearly that you have no right of survivorship. “Unless otherwise required by law, you agree that your account is non-transferable and that any rights to your Apple ID or content within your account terminate upon your death,” Apple’s Ts&Cs state.

Good luck trying to shove an English will and testament under the noses of the staff at the Genius Bar when attempting to retrieve a dead relative’s music downloads or photos too. “Apple is a California company governed by Californian law, so waving an English grant of probate at them and saying this is what I need you to do doesn’t cut much mustard,” said The Law Society’s Bond.

“If you want to have access, what you have to do is go to court and get a particular order,” Bond explained. “Apple doesn’t oppose the order, but it’s still saying that not only do you need to grant probate, you need a court order, and the process is now becoming a little bit more developed.”

Likewise, you shouldn’t bank on leaving your vast collection of Amazon Kindle books to your family in a digital will. Amazon’s Kindle terms of service state that: “Unless specifically indicated otherwise, you

may not sell, rent, lease, distribute, broadca st, sublicense, or otherwise assign any rights to the Kindle content or any portion of it to any third party.”

What happens in the case of family accounts, where household members are allowed to share purchases? Do they disappear when a family member dies? Amazon declined to answer that question when we put it to their spokespeople. Make of that what you (ahem) will.

To be fair to Amazon, it does seem to be more generous when it comes to closing regular Amazon accounts. The company has a dedicated email address ( bereavement-support@ amazon.co.uk) to deal with requests to close accounts of the dead, and if a spouse is mentioned on the death certificate, Amazon offers to transfer any unspent gift vouchers to the bereaved relative.

We could go on and on here, listing the different policies of the various online services, but the magazine would be the size of an encyclopedia and we’d all be dead by the time we’d

WE’RE STARTING TO SEE A MORE UNIFORM WAY OF DEALING WITH DEATH, BUT WE’RE NOT THERE YET

finished. The irritating truth is that – in the absence of any domestic or international law to stipulate what should happen to dead customers’ digital assets – it’s largely down to the companies themselves to decide, which means ploughing through their terms and conditions. “We’re starting to see a movement towards a more global perspective, a more uniform way of dealing with it [the death of a customer], but we’re not there yet,” said Bond, who added that it will be “probably a decade or so wait until we have something where we can just say, ‘here’s the clearly defined way that I can assert my rights against any big technology company, or any social media player’.”

Taking matters into your own hands

If the terms and conditions state that you lose access to assets – be that music, games or even deposits held with companies – in the event of your death, the temptation might be to take matters into your own hands. Why not simply share usernames and passwords with family members and transfer all the assets out (if possible)? Or keep the account active?

There are potential legal problems here. Most terms and conditions will state that it breaches the terms to share usernames and passwords with a third party, although the chances of, say, Twitter taking a dim view of someone taking over a dead relative’s account seem slim. Norris says the Digital Legacy Association merely presents the various different options to families and that “if they feel that breaking the terms of service is best, that’s for them to decide”.

“We just provide all of the information that you know you can do in relation to UK law.”

The Law Society’s Bond warns there are some online accounts you definitely shouldn’t be interfering with after someone’s death, especially online bank accounts. “I’ve got my online Barclays banking app. I’ve died. I’ve told my family members, here’s my banking code. I’ve left it packed in a sealed envelope to open after my death. If that person then goes on to my device, accesses my Barclays app, takes the money out of the accounts after I’d died, but without telling Barclays and without going through the full formal procedure, that’s where an offence occurs,” he said.

“Most of the time, it will be people trying to do things the right way,” Bond added. “But technically you are committing offences: there are money laundering offences… in accessing the accounts, as well as all of the Computer Misuse legislation that comes into play there.”

That really would be making a terrible situation even worse.