Anyone who owns a digital device or has an online account should have a plan for dealing with that asset, whatever their age.
No legislative definition
There is no legislative definition of a ‘digital asset’ in the UK. Digital assets can be understood as any information about you or created by you that exists in digital form, either online or on an electronic storage device, including the information necessary to access the digital asset.
Digital Assets include:
Personal digital assets:
- computing hardware: computers, external hard drives, flash drives, tablets, smartphones, digital music players, e-readers, digital cameras
- any information or data that is stored electronically: online, in the cloud or on a physical device
- online accounts: banking, utilities, insurance, email, stock trading, betting, social media, shopping, film subscriptions, photo and video sharing, gaming accounts, and online storage
- virtual currency: Bitcoins, Linden dollars, etc
- domain names, websites, blogs
- intellectual property
- professional profiles
Business digital assets:
- any digital assets owned by a business: computing hardware, data, licensable code, passwords to patents, presentations, white papers, link portfolios and financial spreadsheets, branding assets, analysis reports
- online accounts: company email, Google ID, social media, apps
- assets of an online store: eg eBay, Etsy, Amazon
- domain names, websites
- mailing lists, newsletter subscriptions, client email lists, client history
Terms of Service relating to commonly encountered digital assets
|Amazon||A limited, non-exclusive, non-transferable, non-sublicensable licence to access and make personal and non-commercial use of the Amazon Services is granted.|
|End user licence agreement (EULA): products are licensed, not sold, to you. You may not rent, lease, lend, sell, transfer, redistribute or sublicense the Licensed Application and, if you sell your Mac Computer or iOS Device to a third party, you must remove the Licensed Application before doing so.
Enable ‘Family Sharing’ for access to certain iTunes, iBooks, App Store purchases and iCloud content.
iCloud: the account is non-transferable and any rights to the Apple ID or Content terminate upon death and all Content may be deleted.
iTunes: products are provided by way of a license only.
Website: You may not use anyone else’s Apple ID, password or account at any time without the express permission and consent of the holder of that Apple ID, password or account.
|Bitcoins||Can be transferred but need password(s) to the wallet(s)|
|eBay||User Agreement: You may not transfer your eBay account (including Feedback) and user ID to another party without eBay’s consent.
Closing an Account: Request a refund before submitting a request to eBay to close an account or store.
1.4 You may not transfer or assign any rights or obligations you have under this Agreement without PayPal’s prior written consent.
7.1 You must withdraw any balance not later than the time the account is closed and agreement terminated.
7.3 If you do not access your Account for a period of three years it may be closed.
|Statement of Rights and Responsibilities:
4.9 You will not transfer your account (including any page or application) to anyone without first getting our written permission.
Complete the ‘Special Request for Deceased Person’s Account’ to remove or memorialise an account.
Enable ‘Legacy Contact’ to choose to have account permanently deleted on death or to appoint a ‘legacy contact’ to control the account when it is memorialised. Legacy contact cannot log in, remove or change past posts, read sent messages or remove friends.
|Use ‘Inactive Account Manager’ to delete the account or let a trusted contact download some of the content if the account is inactive (default period: three months).
Basic Terms: (3) …you agree you will not sell, transfer, license or assign your account, followers, username or any account rights.
Rights: (1) Instagram does not claim ownership of any Content that you post on or through the Service.
|Terms of Service:
B.4 You agree to keep your password secure and confidential, not permit others to use the account, refrain from using other Users’ accounts, and refrain from selling, trading or otherwise transferring your LinkedIn account to another party.
C. LinkedIn grants a limited, revocable, nonexclusive, nonassignable, nonsublicenseable license and right to access the Service.
Complete ‘Verification of death form’ to close a deceased user’s account and remove their profile. LinkedIn will not provide personal representatives with the user’s account information.
|Licence Terms: The application is licensed, not sold. You may not rent, lease, lend or transfer the application or this agreement to a third party.
‘Next of Kin’ process: allows release of Outlook.com contents (on a DVD), including all emails, attachments, address books and Messenger contact list information, to next of kin of a deceased or incapacitated account holder and/or closure of the account.
Email account contents are deleted after 365 days of inactivity and the account will be deleted after an additional one month.
|Second Life||Terms of Service: 2.3 You retain any and all Intellectual Property Rights you already hold under applicable law in Content you upload, publish, and submit…
4.1 You may not sell, transfer or assign your Account or its contractual rights, licenses and obligations, to any third party (including, for the avoidance of doubt, permitting another individual to access your Account) without the prior written consent of Linden Lab.
|Terms of Service: (6) Twitter gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license.
Twitter will work with a personal representative or verified family member to deactivate an account. It will not provide account access to anyone regardless of the relationship to the deceased.
|Yahoo! Flickr||Terms of Service:
(6) Yahoo may access, preserve and disclose account information and content if required to do so by law or in a good faith belief that this is reasonably necessary to comply with legal process… or protect the rights… of Yahoo, its users and the public.
(15) Termination includes removal of access, deletion of password and all related information, files and content, and barring of further use.
(18) Yahoo grants a personal, non-transferable and non-exclusive right and license.
(28) No Right of Survivorship and Non-Transferability. A Yahoo account is non-transferable and any right to the Yahoo ID or contents within the account terminate upon death.
Steps that you should take to protect their digital estate / assets
Make a list:
- individuals: create a memorandum of digital assets with emails, usernames and passwords (see below)
- businesses: create an EDRP
Keep the list safe:
- save the memorandum or EDRP to an external hard or flash drive
- store a copy of the memorandum with the Will, EPA or LPA
- store the EDRP with a nominated person(s) who is expressly authorised by the owner of the digital asset to act on their behalf
- consider using a password management company
If you have any questions regarding this article or wish to incorporate clauses within your Will or LPA dealing with your digital assets please contact our Rajan Berry.
Digital Asset Schedule
|Item||Access information—eg email address, username, password||Instructions|
Computers, tablets, smartphones, etc
|Personal mobile phone|
|Work mobile phone|
|Social networking/Instant messaging|
|AOL Instant Messaging|
|Bank/building society accounts:
|Share trading accounts:
|Online utility accounts|
|Domain names, web pages, blogs etc|
|Domain name & registrar/host:
|Online media accounts|
|Online shopping/auction accounts|
|Other digital assets|
1. Sainsburys Nectar
2. Tesco Clubcard
5. Avios (BA)