Tech Insight : Should You Make An ‘E-Will’?

3rd May 2023

In the past, people have primarily focused on their physical belongings and financial assets when planning for the future. However, as more and more of our lives move online, digital assets have become just as important to consider. So, do you need to make an ‘e-will’?

What Are Your Digital Assets?

Digital assets can include a wide range of items, such as social media accounts, email accounts, cloud storage, cryptocurrency, digital photos, and other digital files. When someone passes away, these assets can become difficult to manage or even lost if there are no clear instructions in place.

Electronic Will/E-Will/Digital Estate Plan

To ensure that your digital assets are taken care of after you pass away, you may want to create an electronic will/e-will/digital estate plan. This e-will can include instructions for how your digital assets should be managed or transferred after your death and specifically focuses on your digital assets, such as online accounts, digital files and cryptocurrency. Some e-will planning considerations may include:

  • Inventory of your digital assets. Make a list of all your digital assets and accounts, including usernames, passwords, and any other relevant information.
  • Decide who should manage your digital assets/designate an official executor. You may want to appoint a trusted individual to manage your digital assets after you pass away. This person should have access to your inventory and be familiar with your wishes.
  • Decide what to do with your social media accounts. Some social media platforms allow you to designate a legacy contact who can manage your account after you pass away. Alternatively, you may want to specify that your accounts should be deleted or memorialised.
  • Decide what to do with your email accounts. You may want to give access to your email accounts to your designated digital executor or specify that they should be deleted.
  • Consider transferring ownership of digital assets. For certain digital assets such as cryptocurrency or domain names, you may want to consider transferring ownership to a trusted individual or organisation.

What Does UK Law Say About Your Digital Assets?

In the UK, the law is still catching up with the increasing importance of digital assets and digital estate planning. However, there are some laws and regulations that govern the management of digital assets after death.

The main piece of legislation that covers digital assets in the UK is the General Data Protection Regulation (GDPR). Under the GDPR, individuals have the right to request that their personal data be deleted, which could include data stored on digital platforms after they have passed away.

It’s worth noting that the terms and conditions of each digital service or platform may also impact how your digital assets are managed after your death. For example, some social media platforms allow you to appoint a “legacy contact” who can manage your account after you pass away.

It’s a good idea to consult with a legal professional who specialises in digital estate planning to ensure that your wishes are legally valid and enforceable.

UK Example

An example of a UK e-will being accepted by a UK court (the High Court) occurred in 2019. A woman named Lesley Trenner created an electronic will using an online will service called ‘WillSuite’. The will was signed digitally and witnessed remotely by two individuals over video conferencing. After Trenner passed away, her electronic will was accepted by the UK High Court, making it the first electronic will to be recognised as legally valid in the UK.

Issues

In the UK, one of the main issues around making e-wills is the lack of clear legal guidelines and legislation regarding their usage. While there have been a few cases where electronic wills have been accepted by courts, there is still some uncertainty around their validity and enforceability. There are also concerns about security and the risk of fraud, as electronic signatures can be easier to forge than traditional signatures.

Furthermore, there is also the issue of how to ensure that the testator was of sound mind and understood the implications of their will when they created it, especially if the will was created remotely without witnesses present.

Digital assets such as cryptocurrency and online accounts can also be difficult to manage and distribute without clear instructions in a will.

What Does This Mean For Your Business?

In today’s digital age, it’s becoming increasingly important for individuals to consider their digital assets when creating a will. Digital assets such as social media accounts, email accounts and digital files can be lost or become difficult to manage without clear instructions in place. This has led to the rise of electronic wills or e-wills, which specifically focus on an individual’s digital assets. While UK law is still catching up with the importance of digital assets, there are laws and regulations in place such as GDPR. However, there are concerns about the lack of clear legal guidelines, security, and the risk of fraud with e-wills. As digital assets become more commonplace, an opportunity has arisen for businesses to offer digital estate planning services to clients and to consult with legal professionals who specialise in this area to ensure that their clients’ wishes are legally valid and enforceable.