Digital Assets and the Limits of Technology
  • 29th Nov 2017
  • Article written by Richard Hearne
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For Personal Representatives, so called ‘digital assets’ can provide an additional headache in the estate administration process.

The initial stage of the administration period of any estate is to establish the assets and liabilities of the deceased person. In addition to the usual bank accounts, property, stocks and shares and personal possessions (which are often self-evident) a Personal Representative must now consider the following:-

  • What electronic assets might the deceased have owned?
  • How can I find them?
  • How can I access and then transfer them?

The most tangible of these assets are likely to be in the form of on-line bank accounts or investments. However, a Personal Representative now may also need to consider digital media such as music or photographic collections.

Although it is tempting to access such assets through the use of passwords or PINs that have been discovered amongst the personal possessions of the deceased, caution should be exercised. Variously, an Executor may inadvertently fall foul of the Computer Misuse Act 1990, Contract Law or even Money Laundering Regulations.

Indeed, it is often better to rely on more conventional methods to deal with these assets. Banks should be contacted in the usual way through their Customer Service Centres and most other digital platforms will operate in a similar way and will have central phone numbers or addresses to contact. Each company will then advise on the appropriate way to access any assets and provide valuations if applicable.

In respect of social media such as Facebook, strict rules for dealing with accounts apply. Indeed, Facebook will offer a Personal Representative the opportunity to either close or ‘memorialise’ an account.

With regard to digitally stored music, it is worth remembering that that very often this is sold as personal licences  which are not transferable; or assignable on death. Therefore, large and expensive collections of digital music can simply be lost upon death.

With the growth in digital assets and an increasing awareness of their incumbent issues, a parallel rise in companies offering one-stop solutions to their management both during and after life has followed. Often these  websites offer an accompanying remote Will writing service.

The problems with these sites are numerous.

Firstly, it is difficult to see (despite their claims to the contrary) how they can circumnavigate the data-protection issues already discussed in this article.

Secondly, however “safe” they profess to be , experience tells us that our data can very easily be compromised or stolen.

Thirdly, and as with any situation, these sites are only ever as good as the information put into them. A Personal Representative could never rely on searching one source of information only to properly fulfil their obligations.

Finally, as mentioned, these sites often appear to be a lead into selling on-line legal services of a fairly dubious nature. This is never to be advised and is never a substitute for employing the services of a properly qualified and regulated lawyer.

The message from all of this, in many ways, is distinctly traditional. Everyone should certainly be aware of their digital existence and give thought to making a record of their assets and perhaps even record in their Will how certain media should be dealt with or bequeathed. However, the simplest and safest way to impart this information is to have a Will professionally drafted and stored by a Solicitor and to make sure that a regularly updated list of assets is stored with that Will and any additional guidance to your Personal Representatives appropriately recorded.

If you would like to discuss this further then please get in touch with Richard Hearne or one of the team, at any of our four offices.