An estimated £25 billion of the UK population’s assets are today held online. It is anticipated that more of our physical assets will be digitized in the future where they can be and, while this process often makes our lives more convenient and less cluttered, it presents unique legal issues when it comes to planning your legacy.  Assets that would have historically passed in physical form (such as an individual’s media collection) via a will, trust, or intestacy may no longer be capable of being passed in that way. 

So what happens to our digital legacy? Whilst English and Jersey case law on the subject of the transfer of digital assets is virtually non-existent, there are some steps you can take to ensure your digital assets are protected in the future.

What are digital assets?

Broadly speaking, digital assets are anything that are not in tangible, physical form. Most people in Jersey will have a number of forms of digital assets and it is estimated that 72% of adult internet users have a social media profile.

Examples of digital assets include, but are not limited to, the following:

  • Email accounts
  • Subscription services
  • Music and video assets such as those held on iTunes or Amazon accounts
  • Picture and document storage on iCloud or Dropbox, or a similar service provider
  • Gaming assets
  • Social media content such as Facebook, Twitter or Snapchat accounts
  • Websites

Legal ownership

The basic starting position under English and Jersey law is that there is no property right in information itself.  Many people assume they own their online content and they are unaware that they usually only have a 'licence' to use a provider’s services for a certain period of time.  

The rights of the owner of any particular digital asset will vary from product to product and service to service, however, the key document for an individual to understand their rights in relation to a digital asset is the Terms of Use or Service.  Terms will vary depending on the asset, but often the starting position is that any licence granted to digital assets or services will terminate on the death of the consumer and is non-transferrable. 

A standard grant of probate under Jersey law may not be sufficient to enable executors to obtain legal title to digital assets. The Terms of Use for each service provider should establish the rights of an executor to access someone's digital assets on death.

Online media

Many individuals will hold accounts with various technology companies. 

A short summary of the treatment of digital assets by well-known online media entities is summarised below:

Microsoft: on receipt of a death certificate and grant of probate, Microsoft will provide copies of emails on a disc to the next of kin.

Facebook: since July 2015, account holders have been able to appoint an 'online executor' who can administer the page after their death.  A deceased person’s account can be deleted or 'memorialised' and preserved online by this ‘Legacy Contact’.

Apple:  the licence to play digital recordings is not transferrable but “Apple Family Sharing” allows a specified number of devices to access content. Apple will transfer or close an account on presentation of a death certificate and grant of probate.

Google: Google permits account holders to set up an ‘Inactive Account Manager’. Google will then notify the chosen persons after an account has been inactive for a predetermined period of time, who will be granted access to the deceased person’s account.

PayPal: accounts are closed on presentation of a death certificate and grant of probate and a cheque is issued for any leftover funds to the executor?

eBay: accounts are closed on presentation of a death certificate and grant of probate with a cheque issued for any leftover funds to the executor?.

Practical steps for protecting digital assets in your estate:

If you are making a will or simply wish to consider what you should do to preserve your digital assets in the future, the following steps should be taken in the first instance:

1.     check each digital service provider’s Terms of Service to understand the treatment of your assets and your rights upon death;

2.     leave clear instructions about what should happen to your digital legacy. Give instructions for both your digital acquisitions (purchased online media) and digital presence (social media);

3.     digital assets with monetary value and any associated intellectual property rights will need specialist treatment in your will. There should also be scope to appoint a separate 'digital executor' who has the necessary expertise to handle your digital assets; and

4.     subject to the digital services provider’s Terms of Service, it is a good idea to keep a record of your online life – apps, email accounts, social networks, blogs, photo sharing sites, bank accounts etc.. These details should not be part of your will as this becomes a public document upon your death, but should be a document separately available to your executors.