We all have digital assets, but how many of us have considered what happens to them when we die?

Digital assets are possessions that are accessed through a digital service such as a PC, laptop, mobile phone or tablet. Many of us may have them without realising, such as an email address, digital photographs and possibly MP3 collections of music.

So, the questions arises as to what happens to these on death?  In England and Wales, the general position is that the personal representatives (those appointed to administer your estate) will step in when someone has died and take control of the deceased persons assets.

The situation with digital assets differs in that the rules relating to the digital asset will be governed by the terms and conditions agreed when the account was set up, or updated terms and conditions depending on the provider. Many providers are based in the USA, such as Microsoft, Google, Facebook and Apple and they have stringent rules about what will happen to digital assets and how they are accessed after someone dies. 

As a general rule, these terms and conditions will usually say that the account will be wiped after a period of inactivity, which would occur after someone’s death. If you contact them to request access to a loved ones account after their death, they can say no, even after you have obtained a Grant of Probate in the estate and it may be necessary to obtain a separate Court Order to allow access to the account.  

One recent case involved a mother, with a young child whose husband tragically died suddenly.  He was a keen photographer and took pictures on his mobile phone of their daughter growing up.  Even though under the husbands Will, all assets passed to her, the mobile phone provider said there were only two options available: for the account to be closed, or a Court Order obtained to provide the mother with the log in details to be able to access the photographs.

In this case a Court Order was obtained and access was granted to the mother, however this could have been circumvented if the mother had access to her husband’s log in details. 

It is therefore important to ensure that an inventory of digital assets is kept, with logins and password and this should be kept up to date.  It goes without saying that this inventory should be kept in a secure place to ensure that it is only accessed after your death by your personal representatives.  It could for example be left with a professional advisor and stored with your Will to ensure that your personal representatives can gain access after your death. 

Serena Elliott is a Consultant Private Client Solicitor with Bate & Albon Solicitors. She is also a member of Solicitors for the Elderly and a Dementia Friend.