News 12 January 2024

Navigating estate planning in the digital age—a guide to digital asset inheritance

Sarah Grimwood

4 min Read

Associate Sarah Grimwood explores the often-overlooked realm of digital assets in estate planning during the digital age, emphasising the need to consider both financial and sentimental aspects to prevent irreversible losses.

When we think of passing down valuable items to the next generation, we may think of the treasured family photo albums or the letters written to loved ones. Yet, in the modern world, these may take a different form such as photos posted on Facebook, Instagram or a WhatsApp conversation. It is therefore surprising how little thought is given to digital assets when it comes to estate planning, leading to valuable assets (both financial and sentimental) being lost forever.

What are digital assets?

Digital assets are personal possessions which are accessed on a digital device (e.g. mobile phone, laptop or tablet) normally via an online account provided by a third party such as Netflix, Instagram, Facebook, Google, etc. Examples of digital assets include digital photos, videos, email / WhatsApp conversations, non-fungible tokens (NFTs) and cryptocurrency.

Alerting your representative to your digital assets

If your personal representative(s) (PRs) are unaware of your digital assets, then they may be overlooked on your death. To alert your PRs to the existence of your digital assets you could:

Make specific reference to digital assets in your will
Compile an inventory of your digital assets and include information about the account such as the name of the account, the website and the user ID
Prepare a letter of wishes specifying your digital assets and how to deal with them. If you have not set it out explicitly, your PRs may not know, for example, that preserving your Instagram photos is important to you

Providing access to your digital assets

Even if your PRs are aware of your digital assets, they will be unable to preserve them if they cannot be accessed. Each account provider will have their own terms of use regulating access to the account on your death, which must be set up accordingly during your lifetime.

Social media

For example, Facebook allows you to appoint a ‘legacy contact’ to look after a memorialised profile, meaning that photos and posts are not lost. You may also want to download photos and videos to an external hard drive which your beneficiaries can access, to avoid any issues with dealing with a third party provider. Whilst it is not ideal to write down passwords, if this is unavoidable, then ensure these are stored securely.

Cryptocurrency

Dealing with cryptocurrency on death can be particularly problematic. In order to access, receive and send cryptocurrency a ‘private key’ (similar to a password) is required, the purpose being to protect the owner from theft and unauthorised access to funds. However, this also means that if your PRs do not have the private key(s), they cannot access the funds. As cryptocurrency is decentralised, i.e. there is no central authority which manages it; you cannot simply request access through the relevant bank or financial institution. Possible ways of passing on access to your cryptocurrency on death include:

Sharing your private key(s) with your PRs

Although the simplest solution, the downside is that it may not be the most secure method and consideration needs to be given as to how details can be shared without compromising the security of your cryptocurrency. Do not write the details of your private key(s) in the will itself as this becomes a public record.

Using a hardware wallet

This is a way of holding cryptocurrency keys through a device which is not connected to the internet. Each hardware wallet should also have a recovery process to recover the crypto assets in case something happens to the hardware wallet. You may wish to store step-by-step instructions on how to access the wallet, as well as the recovery process, in a safe place such as a safe-deposit box or vault and make your PRs aware of this.

Using a third party custodian e.g. crypto exchanges, traditional custodian banks and digital asset managers.

Access to the account can then be dealt with via the third party custodian on your death (you will need to verify with the provider their individual processes). The downside to this method is that you will not be fully in control of your cryptocurrency as it is the custodian who has custody of the private key(s) and there may be charges applicable such as deposit, withdrawal and storage fees.

Using a multi-signature wallet

As the name suggests, in order to make transactions the parties must collaboratively sign using their private keys. Some wallet providers allow a ‘back-up key’ which can be used in the event of emergency allowing relatives or PRs access on death although you will need to check the policies of each provider.

Thinking about your digital presence and assets now in advance of your death, can substantially help those left behind, saving them from the heartache and headache of trying to recover digitals assets which may otherwise be lost.

The Russell-Cooke private client team can provide guidance and advice on how to manage and deal with your digital assets upon your death.

Get in touch

If you would like to speak with a member of the team you can contact our private client solicitors; Holborn office +44 (0)20 3826 7522; Kingston office +44 (0)20 3826 7529 or Putney office +44 (0)20 3826 7515 or complete our form.

Enquiry form Will enquiry form