When drafting your Will, remember to give consideration to your digital assets

by | May 23, 2022

Digital assets are an established and growing part of modern life. Therefore, it is important to consider what happens to your digital footprint upon death or incapacity – especially if they hold monetary or sentimental value.

Examples of digital assets include:

  • Digital book and music libraries;
  • Intellectual property rights;
  • Online banking and e-commerce accounts, and payment systems such as PayPal;
  • Cryptocurrencies, or non-fungible tokens (NFTs) – digital versions of real-world objects;
  • Documents, emails, and databases;
  • Domain names and websites;
  • Photos, videos, or business documents stored either on a device owned by an individual or third-party cloud-based facility;
  • Media uploaded to third-party platforms such as YouTube; and
  • Social media or blog accounts.

Complications may arise for Executors and beneficiaries in the administration of a deceased person’s estate, with respect to accessing, selling, or transferring digital assets. Moreover, if left unattended, digital assets could be lost in cyberspace, or left vulnerable to threats such as identity theft or hacking.

In Australia, there is currently no statutory scheme that provides a legal representative such as an Attorney (upon incapacity), or Executor (upon death), with the right to access and deal with digital assets. In this regard, the rights of fiduciaries over digital assets requires legislative reforms.  In the meantime, the right to deal with such assets may be determined by the service agreement between the user and provider. For instance, an Executor may need to provide a copy of the death certificate (or other such evidence) to gain access to a deceased person’s online account. In other instances, a digital asset (for example, loyalty reward points) may be forfeited upon the death of the holder.

Given their intangible nature (that is, assets that lack physical form), it is prudent from an estate planning perspective to prepare a list of all your digital assets along with instructions on how to access them (preferably storing usernames and passwords separately), and what you want done with them – and keep this list with your Will in a safe and secure location. Your nominated Executor can then deal with your digital assets after your death, just as they would any physical assets.

A Scammell & Co estate planning lawyer can provide advice and draft a Will that ensures your assets, both physical and digital, are dealt with as you wish. That way, there is no ambiguity as to your wishes, and it reduces the risk of your digital assets being lost, overlooked, or remain inaccessible after your death. For further information about preparing a Will and general Estate Planning advice click HERE