The digital age has revolutionised how we interact with the world—it’s changed how we communicate, bank, shop, and even store memories. Yet, one critical question often remains unanswered until it’s too late: what happens to your digital assets when you pass away?
From cryptocurrency wallets and cloud storage to streaming subscriptions and social media accounts, your digital assets are as much a part of your estate as physical belongings. However, navigating the succession and probate of these assets introduces a unique set of challenges.
This blog explores what digital assets are, why their succession presents legal and practical complexities, and the steps you can take to ensure your digital estate is managed the way you intend.
What Are Digital Assets?
Digital assets refer to any content or account you own in the digital realm that holds value, whether emotional, financial, or functional. Examples include:
- Personal assets such as photos, videos, emails, and documents stored on cloud services like Google Drive or Dropbox.
- Social media and email accounts, including platforms like Facebook, Instagram, and Gmail, often containing both sentimental and private information.
- Financial assets, such as cryptocurrencies, PayPal funds, or digital-only banks like Revolut.
- Subscriptions and online services like Netflix, Amazon, and Spotify.
- Cloud-based billing arrangements for utilities or vendor loyalty programs.
While digital assets are widespread, there is often uncertainty about whether they legally count as “property” and, if so, how they can or should be passed on to beneficiaries.
Why the Succession of Digital Assets Is Complicated
Unlike physical belongings, digital assets often don’t have a straightforward legal pathway for inheritance. Several factors complicate their transfer, including:
1. Ownership Bound by User Agreements
Most digital assets are governed by user agreements with Internet Service Providers (ISPs), such as Apple, Microsoft, or Facebook. These agreements often stipulate whether accounts or content can be transferred after death—and they usually don’t. For instance, Apple’s iCloud terms state that all content and associated rights terminate upon the account holder’s death unless otherwise required by law.
2. Data Access Restrictions
Accessing a deceased individual’s digital accounts generally requires passwords or encryption keys, which may not have been shared before death. Without these, legal representatives or loved ones may need a court order to access the account—creating costly and time-consuming hurdles.
3. Lack of Legislative Guidance
Few countries have comprehensive laws addressing digital inheritance. This leaves much of the process up to ISPs or ad-hoc court decisions. For instance, in Ireland, there is no legislative framework defining digital assets as property under the Succession Act of 1965, leaving the matter open to legal interpretation and individual ISP policies.
4. The Risk of Lost or Irretrievable Assets
Assets like cryptocurrencies stored in private digital wallets can be permanently lost if heirs are unaware of their existence or have no means of accessing them. Unlike traditional bank accounts, there’s no central authority to regain custody.
5. Confusion Over Value
Some assets hold obvious financial or sentimental value, such as cryptocurrency or family photos, while others, like subscription accounts, may seem negligible. However, neglecting to account for even small asset categories can create gaps in estate planning, potentially leaving subscription fees unpaid or sensitive information vulnerable to misuse.
Steps to Ensure Digital Assets Are Secured in Probate
With digital inheritance increasingly affecting estate planning, here are six steps to help ensure your digital assets are seamlessly and properly handled after your passing.
Step 1: Create a Digital Asset Inventory
Document your online presence, including account types, associated email addresses, passwords, and recovery methods. Examples of assets to include in your inventory are social media accounts, cloud storage, streaming subscriptions, financial accounts, and cryptocurrency wallets.
It’s also advisable to note the location of critical physical items like hard drives, cold wallets (offline cryptocurrency wallets), or paper backups of encryption keys.
Step 2: Clarify Legal Ownership and Access Rights
Research the terms and conditions governing your accounts. Some platforms, like Meta, offer the ability to designate a “legacy contact” who can manage specific actions, such as memorialising a Facebook account after death. Knowing the legal framework can help you set realistic expectations for your beneficiaries.
Step 3: Use a “Digital Will” to Provide Access Instructions
While not legally binding, a “digital will” acts as a guiding document for your executors. It should include account credentials, access instructions, and preferences for how each account or asset should be managed—whether archived, transferred, or deleted.
Ensure this digital inventory is stored securely alongside your traditional will. Avoid including sensitive passwords directly within the will itself since wills often become public records during probate.
Step 4: Address Cryptocurrencies Specifically
If you own cryptocurrencies (Bitcoin, Ethereum, etc.), ensure clear instructions are left for your beneficiaries. Include public wallet addresses and how to access private keys or recovery phrases. For maximum security, consider storing this information in a safe deposit box or use a trusted third-party custodian service.
Failing to prepare these instructions could result in the currency being irretrievable, even if explicitly addressed in your traditional will.
Step 5: Consult an Estate Planning Solicitor
Due to the legal ambiguity surrounding many digital assets, consulting an estate planning solicitor who specialises in probate and digital inheritance is essential. They can help you draft provisions in your will regarding asset access, provide guidance on ISP agreements, and, if necessary, apply to the courts for legal direction.
Step 6: Keep Everything Updated
Accounts, passwords, and digital values change constantly. Review and update your inventory, digital will, and any legacy contact selections regularly to ensure they remain accurate and comprehensive.
A Case in Point: Learning from the Courts
Legal precedents offer useful insights into digital inheritance. For example, in the 2018 LG Berlin Facebook case, the German Federal Supreme Court ruled in favour of a deceased teenager’s parents, allowing them access to her memorialised Facebook account. The court reasoned that social media content was no different from personal letters, which are inherently inheritable.
Although such rulings are promising, they highlight the reliance on court proceedings to resolve ambiguities—something you can mitigate by thorough planning.
Plan Ahead, Secure Peace of Mind
Digital assets are an integral part of modern life, so ensuring their efficient handling after death is a responsibility for both testators and estate planners. By creating a detailed inventory, leveraging legacy contact features, and consulting professionals, you can ensure your digital legacy is preserved and passed on as you intended.
For tailored legal guidance and estate planning expertise, contact us today. Together, we’ll help you safeguard everything from family photos to financial assets for generations to come.
