10 December 2019

The festive period is a great opportunity to reconnect with the friends and family that we haven’t seen enough of over the past 12 months. Photographs will be taken and exchanged, lasting memories created and shared.

Technology such as smartphones has made it easier than ever to capture moments and developments in cloud computing have enabled us to store and access this data seamlessly over the internet. Whilst ‘the cloud’ is something many of us have embraced as a part of modern life, few of us stop to consider how the digital assets that we store electronically might be accessed if we were to die or could no longer manger our own affairs. Fewer still have put in place digital asset-specific inheritance plans despite these becoming increasingly more relevant in our tech-dependent lifestyles.

Our team recently assisted a client in the administration of her partner’s estate where access to digital assets, specifically photos, was a principal concern. Prior to his death, her partner had taken numerous photographs documenting their time spent together and stored these on his iCloud account. Unfortunately, our client could not access these photographs after his passing as she did not have access to his account and was not aware of his login details.

The barriers which prevent access to the digital assets of the deceased partner are twofold.

Firstly, companies which store users’ personal details and digital assets have a duty to protect the privacy of the data. In the absence of instruction from the deceased individual, the company are not in a position to know who the deceased would want the information to be shared with. In the case of the iCloud account, Apple would not provide assistance to access the deceased’s device unless a court order was obtained declaring that they are the rightful inheritors of the deceased’s digital assets. This can be a costly and lengthy process, often made more complicated by the fact that the deceased has not specifically stated who they wish to access their emails/social media/online accounts.

Secondly, from a practical perspective, it was not possible to reset the physical device to access the images. Passcode encryption on the device prevented removal of the passcode lock without erasing the entire device in the process. Security measures that we take for granted during our lives can work against our loved ones when we die unless we take steps to counteract them.

Failure to adequately address digital estate planning does not simply have a negative sentimental impact, it can also lead to untoward financial consequences. With the widespread use of online payment systems, such as PayPal, and the growth of cryptocurrency as an acceptable medium of exchange, individuals have to consider not just who should inherit these digital assets but also what information will need to be provided to facilitate any transfer of funds.

Earlier this year the Canadian cryptocurrency exchange QuadrigaCX was incapable of accessing millions of Canadian dollars in cryptocurrency when its CEO Gerald Cotton died unexpectedly without sharing the passwords needed to access the organisation’s digital wallet [Read here]. Whilst this is primarily an issue of poor business contingency planning, it is a costly example of how access to digital assets can be frustrated by a lack of foresight and a failure to plan.

So what can you do to ensure that your digital assets are appropriately dealt with? From our wealth of experience in dealing with such matters, we have devised a simple step-by-step guide to help you in securing your digital legacy. If you would like further assistance with this, or you are dealing with a deceased loved one’s digital assets, please do not hesitate to contact us.

Otherwise, from all of the Wills, Estate and Succession Planning team at BTO, we hope you have a wonderful winter break and enjoy this time with your loved ones.

Contacts: 

Stuart Craig, Trainee Solicitor scr@bto.co.uk T: 0141 221 8012