Creating a digital will

In 1789, Benjamin Franklin wrote that “in this world nothing can be said to be certain, except death and taxes”. Franklin left an enviable legacy both in terms of political history and our understanding of the physical world. Fast-forward 224 years and you wonder if that famous phrase would have ever entered the public domain had Franklin sent it by email, or posted it on Facebook. While death remains inevitable, what happens to our digital assets after we die is uncertain.

Your digital estate, for want of a better term, encompasses everything from your iTunes music collection to your Kindle ebook library; it includes the data you store in the cloud, your email archives and online photo galleries – even your social media profiles. If you were to die tomorrow, what would happen to all this stuff?

As more of modern life is lived digitally, the question isn’t one that will go away. What’s needed is some practical advice on what rights you have, and how you can produce a “digital will” to ensure your loved ones can gain access to the stuff you want them to inherit after you pass away – and to prevent access to data you’d rather they didn’t. It’s time to face up to your mortality and deal with your digital legacy.

Online life after death

The Office for National Statistics calculates that the average wealth of UK households is around £232,000; however, research suggests that you can add £14,932 per person in digital assets to that figure.

The McAfee Digital Assets 2013 study has found that in the UK we each own, on average, more than 3,000 individual digital items such as photos, videos and music.

The same research reveals that 45% of us are “hugely concerned” about losing these assets, but very few people have actually stopped to think about what happens to them after we die.

James Norris has put some thought into the social networking side of things, founding the DeadSocial service. DeadSocial enables users to create a series of messages – videos, photos and text – which form part of a “social media will” and are published on the user’s social networks once they have died (currently only Facebook and Twitter are supported).

This is merely a notification of death, however – social networking from beyond the grave, if you like. What about actually accessing data after a loved one has died?

“The way in which people are able to pass on digital content and media varies from platform to platform, based on a number of factors,” Norris told PC Pro. “When an online platform is informed that a user has passed away, it generally evaluates each case manually.

“Each organisation has its own internal process and policy addressing accounts of the deceased. Being a family member doesn’t automatically mean that you’re passed over media, data or social media site control.”

Mortal combat

In fact, most services have very similar terms of service. Amazon clearly states that the “purchase and download of digital content from Amazon.co.uk, including content from the Kindle Store, is associated with the Amazon.co.uk account used to make the original purchase. As a result, Kindle content cannot be shared like a physical book.”

This basically means that you can leave your Kindle to someone else after you die (you own the hardware after all), but they won’t have any rights over the Kindle’s contents. Don’t expect them to be able to restore purchases should any technical problems occur, or transfer the books to another device.

Apple takes much the same position when it comes to iTunes, stating that “the iTunes Products are provided to you by way of a licence only” – so it’s giving you permission to use the material, rather than granting ownership.

The App Store terms dictate that the “licence granted to you for the Licensed Application by Licensor is limited to a non-transferable licence to use the Licensed Application”.

Social media services don’t make things any easier. Take the Facebook “statement of rights and responsibilities”, for example. On the one hand, it states that “you own all of the content and information you post on Facebook, and you can control how it is shared”, but then goes on to require that “you will not share your password, let anyone else access your account, or… transfer your account (including any Page or application you administer) to anyone without first getting our written permission”.

Your digital estate should be covered in your normal will

Your family can ask for Facebook to “memorialise” your account – on production of proof of death in the form of a link to an obituary or news article.

However, most of us won’t be famous enough to receive this type of media attention. And once Facebook is convinced of your death, your account will be frozen so that nobody can log into it, although existing friends will be able to post remembrance messages on the timeline.

Twitter, meanwhile, will work with you to deactivate the account of a deceased relative if you contact them as either an executor of the estate or a “verified” immediate family member. It requires a copy of the death certificate and your ID, however, along with a signed statement including your relationship to the deceased and your instructions for account action, which must be sent by snail mail to Twitter in San Francisco. If you want anything more than this, Twitter makes clear that it’s “unable to provide account access to anyone regardless of his or her relationship to the deceased”. More details are available by email from privacy@twitter.com.

The most helpful company we’ve found is Google: its Inactive Account Manager feature (found on your Google account settings page) lets you give instructions for what happens to your data from Google services such as Gmail, Blogger, Google+, Drive and Picasa after you die. You can opt to have your data deleted after a set period of account inactivity, or nominate a trusted contact to access the data instead.

When the inactivity period is about to expire, Google alerts you by email or text (which you won’t reply to if you’re dead, obviously), after which your trusted contact is notified and the data is shared or deleted as per your settings.

Creating a digital will

Despite the restrictive terms attached to many online services, it makes sense to include information about your digital estate in your last will and testament. This lets you establish, without doubt, your intentions regarding what happens to your digital footprint after you die, and whom you wish to entrust with carrying out your wishes.

Although it’s common to talk about “digital wills”, Terence Bennett, a senior associate at law firm Charles Russell, clarified for us that “under English law, there is no such thing as a digital will”.

“The legislation does not treat as valid a will that is not written, signed and witnessed in accordance with the Wills Act,” Bennett explained. “If a person wants his digital estate to be accessible and to devolve as intended, he needs to ensure that the right people know how to access it, and that it’s covered by a valid will.”

In other words, your digital estate should be covered in your normal will. Louise Taylor, senior associate at international law firm Taylor Wessing, suggests that “it’s advisable for an individual to give their passwords to their executor, including those to their computer, smart devices and cloud services such as iCloud, Facebook and Flickr” so that they can gain access as needed.

This has a caveat, though: “Bear in mind that wills are published once the courts have granted probate, which means that after this point anyone can get a copy of the will and read its contents, including any passwords.” Someone wanting only their executor to be able to access their passwords should therefore make them available in a separate “memorandum of wishes”, kept with the will but not publicly accessible. This also avoids you having to formally amend your will each time you change passwords.

The memorandum can cover the flipside of the digital estate conundrum too: what if you explicitly don’t want your family to access your online accounts or see your data? “If an individual doesn’t don’t want anyone, including their family, to access any digital accounts,” Taylor advises, “they should avoid drawing attention to this in the actual will”.
Instead, you should discreetly stipulate in your memorandum that the executor should close your accounts after your death, using the passwords provided.

This being the virtual world, properly disposing of your private data isn’t that straightforward. “The accessible-anywhere nature of digital assets is the difficulty here,” Bennett points out. “If a person had a collection of handwritten, private letters, they would become the property of the executors on his death, and he could instruct the executors to destroy them, or only give them to a certain person. With an email, Facebook or Twitter account, anyone who has the password could access it until the account is deleted or locked. It would be for the executor to notify the service provider of death, but because there’s no physical document for the executor to hold and refuse to release, preventing third-party access until the account is closed may well be impossible.”

Make your wishes known

In this complicated area of data after death, nothing is as clear-cut as you might hope. However, English law stipulates that the executor or personal representative of the deceased has control of all assets after death. And it would be quite wrong, both in a legal sense and on ethical grounds (in terms of the account holder’s privacy) for a service to simply hand over a deceased user’s account to someone else just because they happened to be related.

The best way to ensure your wishes are respected after you die, therefore, is to make them known in a legally valid document. That means a properly drafted will, or a memorandum of wishes attached to one. Just don’t leave it until it’s too late.