In today’s society, we are seeing a dramatic increase in individuals with digital assets. From social media, email, photo storage and music streaming these are only some of the many non-tangible assets that people are amassing. An increasingly common problem is how these assets are managed and dealt with following death.
A recent case in Germany saw a mother fighting for control of her deceased daughter’s Facebook page and there have been many instances of Apple refusing to grant the transfer of an individual’s Apple ID account (with Bruce Willis and his iTunes library being a notable example). The contention appears to lie in the privacy policies and terms of use of the digital providers. These providers follow the logic that they have contracts with specific individuals for the right to use their platforms and take the stance that these are not transferable. However, to many bereaved family members it is something that may come as a shock that access cannot be granted to them.
An Executor of an estate in Scotland is granted authority to administer a deceased’s assets. Therefore, there is a clear argument in favour of an Executor having the right to access and administer a person’s digital assets too. The problem is that digital assets are still new and ever changing so making specific provision for such assets, which may or may not exist when you die, can be quite tricky. There can also be conflicts between Scottish Law and the Law in the USA where most of the relevant technology companies are based.
Even if provision is made for such assets in your Will, digital providers all have their own specific conditions to satisfy for the transfer of assets. How provision can be made to meet requirements for current and potential future providers is a complex and developing area. What is clear from these conflicts of family members and digital providers post-death is that it is something to at least consider before you die.
While it is not yet known how the law will continue to develop in relation to digital assets, what is clear is that these assets should no longer be overlooked in prudent estate planning.
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