Do you have a computer or smart phone or other connected device?
Do you use online internet connected services – bank accounts, email, other payment services? It would be hard not to.
Want to start a conversation about your digital assets and your wishes as to what would happen to your online world if you were to lose capacity or pass away?
Digital assets can include photographs, videos, music, e-books, movie subscriptions, social media accounts (Instagram, Facebook, Linked In etc.), digital currency (think Bitcoin, Ethereum and others), online gaming, bank accounts, medical records, bill payments, online subscriptions, business websites and other cloud based shared documents for your personal and business affairs.
Unless you have been living in an isolated world, the chances are that you have some or all of the above comprising your “digital assets”.
In Australia (unlike some other countries), as of yet, we are lacking any formal legislative or court based legal position in relation to the recognition of digital assets in estate planning and administration. The laws in this area are a work in progress.
Chances are that your digital assets have financial or at least sentimental value and any interruption to them on your death or lack of capacity can be entirely disruptive to you or your intended beneficiaries.
Management and control of digital assets is important for a number of reasons including privacy and confidentiality considerations (you need to ensure that it doesn’t fall into the wrong hands but comes under the control of an appropriate person), identity theft issues, financial and sentimental reasons.
Did you know that the terms of some online subscription or social media sites will not allow you to transfer ownership to another person on your death?
Are you familiar with and have you reviewed the relevant terms and conditions of the relevant service to determine what is permitted on your death or incapacity? Have you made an inventory of your digital assets including passwords?
Have you prepared a Memorandum of Wishes with instructions about your digital assets and how they are to be dealt with on your death or incapacity?
Do you want them preserved?
Do you want them deleted or destroyed?
Where are your passwords kept?
It may be a good idea to write them down and provide them (or at least provide advice as to the location of such passwords if something were to happen to you) to ensure that your intended person or persons can assume control of your assets if required. That being said, what if that list gets lost or falls into the wrong hands? The consequences could be disastrous. There are online password management solutions available. These will have their own terms of service and again will need a password!
Do you have an appropriate clause in your Will or your Power of Attorney (if you lose capacity) that authorise your relevant desired person (attorney, executor of your Will etc) to access, use, delete, control as required, transfer, distribute or dispose of your digital assets?
Is your Power of Attorney authorised to make gifts of these assets to particular people, noting in general that a Power of Attorney is unable to gift assets or dispose of those assets unless it is in your objective best interests or as specifically provided in the Power of Attorney?
As stated, the laws in Australia are unsettled in relation to digital assets and ownership and terms of use of many online service providers.
If your digital assets and online world is just as important as your other assets, get advice from an experienced practitioner.
Not sure where to start? Call Donlan Lawyers and arrange a free initial consultation on (08) 8344 6422.
Tim Donlan is a member of the International Society of Trusts and Estates Practitioners (STEP) Digital Assets Special Interest Group. The STEP special interest group is making submissions to the New South Wales Law Reform Commission report into digital assets legislation in New South Wales and Australia.
STEP is of the view that national model legislation in this area is most appropriate.