The Challenges of Including Your Clients’ Digital Assets in Their Will

When deciding all of the assets to include in a will, your clients may simply not think about digital assets as something they can leave for others. Sometimes these assets hold more sentimental than monetary value, but with the rise of cryptocurrency, neglecting to include provisions in a will to deal with digital assets can have very real-world consequences.

Advising your clients on the best ways to safeguard these assets, and how to leave effective instructions for executors to bequeath these assets, is an important element of your service.

People are living increasingly more of their lives online. Whether you view that as a positive or a negative, what it means is that more people are assigning emotional (as well as monetary) value to digital property, and there are unpleasant consequences for the family of the deceased if these are not included in a will.

Modern estate planning requires that we incorporate the growing amount of digital assets into the wills we create for our clients. However, many may not even be aware that they have digital assets, or that they could be lost or left in legal purgatory after they’re gone. So it is essential that you have the conversation with them.

What is a digital asset?

The first thing is to identify what exactly a digital asset is. Asking your client to create a digital inventory is helpful, though they will need to be made aware of what these assets are to make the list!

The Law Commission has proposed a draft Digital Assets Bill that defines digital assets. To be considered a digital asset, it must meet these criteria:

• Electronic format: It must be made of data in an electronic form, like computer code or digital signals.
• Independent existence: It must exist on its own, separate from any person or legal system.
• Exclusive use: If one person uses it, others can’t use it at the same time.

They refer to digital assets as “data objects.” These assets can be categorised into two types: monetary (like cryptocurrencies) and sentimental (like digital photos or personal documents).

Sentimental:

• Email accounts – Email accounts often contain important correspondence and other personal information that could offer a sentimental connection for the family of the deceased. By accessing their email accounts they can properly close them down in the event of sudden death.
• Digital photos and data – Family videos and photographs, word documents, spreadsheets, and even instant messages, any and all data that your client wants to keep should be included. Assets stored on cloud platforms can be designated for bequeathment, the passwords for access given to an executor through instructions attached to the will.
• Social media – It is possible to designate a legacy contact for social media platforms like Facebook and Instagram. This allows a user to give control of their social media over to a trusted individual after their passing. That person can then update profile information or request for the account to be removed.

Monetary:

• Internet banking accounts – Access to the bank accounts of the deceased is important to ensure their money is dealt with correctly after death as well as general information around accounts such as sort codes and account numbers.
• Cryptocurrency – This increasingly popular, currency can be passed down through a will. However, accessing the digital wallet that holds the cryptocurrency can prove complicated. A digital wallet is usually accessed through a smartphone, app, personal computer, or even a USB data storage drive. Access information should be left for an executor in a memorandum to the main will.
• PayPal – As above, a PayPal account’s access information can be left for an executor to log into and transfer the funds to another account, as per the wishes of the deceased.
• NFTs – As of the writing of this article, NFTs are in somewhat of a grey area as to the legitimacy of their financial value. Regardless, that doesn’t mean they can’t be included in a will. There are many NFT marketplaces, and ensuring your client includes as much specific detail for access makes sure they can be dealt with smoothly by the executor.
• Loyalty points – Both Tesco Clubcard and Nectar points are available for transfer to others. It is best to get your clients to check the terms and conditions of their loyalty cards to ensure they can be included in a will. The two we have mentioned are the most well-known examples but there could be others a client may wish to transfer.

Which digital assets cannot be bequeathed?

It is worth noting that there are some assets that cannot be included in a will. Even though your client paid for access, it does not always translate to ownership of that content.

Digital online libraries such as those accessed through iTunes, Amazon, and streaming services are usually held under licence only. Everything that is purchased through those services is owned by the service and not the individual, with subscription payments merely granting access to the catalogue of music, films, or tv shows. It is not generally possible to transfer such “Assets” via a will.

Digital Assets and the Letter of Wishes

Naming the assets that they wish to pass down is the start; how can you ensure access is granted to the various digital accounts that hold the assets?

Advise your clients that they must not include passwords and other sensitive data in the main provision clauses of a will; a will becomes a public document once a grant of probate has been issued. Sensitive content can instead be included in a letter of wishes, which remains confidential.

Because of this, a letter of wishes is a perfect way to deliver the vital access information an executor will need to carry out the instructions of the will.

If the executor is not a particularly tech-savvy individual, it is advisable to have your client provide an exhaustive list of instructions for access. This will be beneficial as the world of online digital assets can seem bewildering to those not involved directly in it.

An estimated 4 billion in cryptocurrency is out of circulation due to loss of access.

A famous case involving the loss of digital assets occurred in 2018, when Gerry Cotten, the founder of QuadrigaCX, died without passing on the access keys to 145 million dollars’ worth of tokens. This is a good example of failing to plan, although in an interesting twist, it could have been entirely to plan all along. This story involves its fair share of controversy; complete with possible faked death, Ponzi schemes, and mysteriously dying on his honeymoon!

The point is that without a clear set of instructions, digital assets are simply lost forever or mired in legal entanglements for a prolonged period.

The legality surrounding digital assets

There is no set legal definition of digital assets, yet. Currently, law recognises personal property under two categories which are “things in possession” and “things in action”. Neither comfortably accommodates digital assets, so a new category of personal property may have to be introduced. As of the writing of this article, there is a draft Digital Assets Bill that has been proposed by the Law Commission to address the issue of the evolving nature of digital assets.

This Bill is necessary because, even though personal property law has been sufficient to cover digital assets for almost 20 years, as the complexity and uncertainty related to digital assets has grown, due to the evolution of technology, more definitive legal definitions need to be created to remove ambiguity.

The Bill aims to do this by clearly recognising digital assets as a class of property under English law.

It’s important to stress regularly updating a will

The online world of digital assets is an ever-changing landscape. New cryptocurrencies and digital fads come and go all the time. As such, changes to your clients’ various digital assets should be noted in the memoranda attached to their wills. Ideally such updates should be made whenever significant changes occur, and with the Legacy app, making amendments to a letter of wishes, for example, is an easy process.

With the diligence, training, and expertise we offer, we’re well-equipped to help you deal with complex matters surrounding estate planning.

To learn more about how best to have the conversation around digital assets with your client, or for in-depth conversation about other aspects of will writing, contact us online today to discuss more.