How to preserve and reclaim digital assets

It is hard to think of a world without technology. We use technology to store photos and to connect with each other.

However, what happens to digital assets on death?

The current legal position is that digital assets are often owned by companies. This means that when a family member attempts to access the deceased’s account, is likely to be prohibited because of the companies’ terms and conditions. Therefore this often leaves relatives dissatisfied and without closure.

It is possible that relatives of the deceased will not know about the digital assets, unless they have been bequeathed in their Will, meaning that digital assets are left unclaimed. This is concerning particularly where the digital assets are financial in nature.

Despite the current legal position there are options available to assist in preserving and reclaiming digital assets.

Including Digital Assets in your Will

To enable digital assets to pass on death without financial and legal hurdles, it is recommended that you consider your digital assets as part of your Estate. Digital assets should be listed within in the Will, a beneficiary and executor should also be appointed.

Third Party Storage Providers

To overcome the limited terms and conditions imposed by companies, one option is using a digital storage platform. This will enable you to collate your digital assets during your lifetime. Subject to the terms of your Will, your executors/beneficiaries can have access to the storage platform. This will simplify the process of distribution and enables you to control how your digital assets pass to beneficiaries.

Proprietary Estoppel

Proprietary estoppel is possible option where a relative of the deceased cannot access digital assets. However, due to the uncertainty of law in this area and the lack of case law, it is advised that, where possible, you should plan the administration of your digital assets prior to death. In order for this to be successful, you would need to demonstrate that a promise or assurance was made to you by the deceased that the digital assets would be gifted to you on their death and that you relied on this promise or assurance to your detriment. An example of a detriment would be that neither you or the deceased made an attempt to transfer the assets prior to death because you believed you would receive the digital assets on their death. You then have to demonstrate that it would unconscionable for the deceased to go back on that promise.

Proceedings

It is possible to make an application to the Court requesting access to the digital assets, however this requires the applicant to incur the costs of obtaining a grant of probate and legal fees. Depending on the value of the deceased’s digital assets, it may not be a commercially viable option, for example where the assets are sentimental in nature or a modest financial value.

Ultimately, where you are attempting to reclaim digital assets of a deceased individual, you may be limited by the commerciality of the asset. Therefore, it is advised to make provision for your digital assets in your Will, and also to use a digital storage provider.


Rebecca Everitt, Paralegal

IDR Law is an approachable, boutique firm and the only one in the country dealing solely with inheritance dispute resolution. Whether you’re a law firm, or an individual who feels they would benefit from our expertise, get in touch here, email us at enquiries@idrlaw.co.uk or call on 0330 175 9912.

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