Digital Assets – What happens to them?

March 07 2016

Do you own any digital assets?

Previously, when a person died the executors or administrators of their estate have waded through the paperwork that can be located to find details of bank accounts, investments and organisations that need to be advised of the death. If all of that information is contained on a digital device to which access cannot be obtained because the password is not known or the thumb print is no longer available, how are these matters handled?

Clients frequently respond “No” to this question but further examination discloses that most own a computer or tablet and many own a smart phone. On those devices they operate their email, download Apps, have Facebook, LinkedIn, Instagram and numerous other social media accounts. They purchase items from, for example, Amazon, Kobo, through Trade Me and in an increasing number of instances, they are operating Internet Banking.

These are all digital assets.

What happens to these digital assets when you lose mental capacity or die?

When downloading an App or opening an operating account on-line you are always asked to accept the terms and conditions. These usually extend to many pages and most people simply push the “Accept” button without having read the terms and conditions in any detail. These terms of operation generally make provision for the ultimate ownership of the items that you have downloaded or uploaded or purchased. Very few of us would know what those provisions are in any particular instance.

We are prudently advised not to share our passwords and codes with any other parties and some digital devices are now utilising a thumb print as the entry to the device. When you die, how do your family members get access to your device?

We recommend that when making your Will or next reviewing the existing Will that you have, provision should be included into the Will as to how your digital assets are to be handled and by whom. Do you wish to remain on Facebook forever? You need to give thought to securely leaving provision for how matters are to be handled.

If you experience an unexpected event which affects your mental capacity will your attorney be able to access your devices and the information contained on them? Will they know what your wishes are with respect to the various accounts you operate on your digital devices?

Technology and our use of our digital devices is growing much faster than any of our laws can keep up with.

It is important that each individual takes responsibility for making the appropriate provisions for their digital assets during their lifetime and on their death.

Your Lawyer at Gifford Devine will be happy to discuss these issues with you and assist you in making the appropriate provisions.

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