INTRODUCTION
Knowingly, unknowingly, voluntarily or involuntarily, we have come to live in an ever-expanding digital world. In fact, your reading this article is an example of the webbed integration of this digital world to our lives. From your smart watch informing you of the hours of sound sleep you have had in the morning to booking an Uber to work, from streaming your favourite movie on your phone to booking your vacation on “points”; tasks, which seemed odd, have now streamlined in to our everyday behaviour.
The era where your empire was determined by the grandiosity of the physical assets you owned have succumbed to the new era of king cyber and queen digital. Now, more than ever, your priced personal belongings are not in the locker or a trunk, but, on your mobile phone, your laptop and your email id. In fact it would not be incorrect to say that there does exist two of ‘you’; one in the real world and one in the digital world. With such an alarming presence of the digital realm in our lives, it has now more than ever become extremely necessary to consider your digital estate planning.
WHAT IS YOUR DIGITAL WEALTH?
More than 33.6 Crore people in India are active social network users. We talk to each other online via WhatsApp, share photos via Instagram, do business via LinkedIn and literally pay for everything via digital wallets now.
Your social media, email-accounts, digital music, book libraries, airline points, hotel point, online only bank accounts/wallets, cryptocurrencies are your new assets which are digital in form. The value of any of these is determined both monetarily and sentimentally. For instance, a digital wallet or cryptocurrency or book libraries can have significant commercial value. In fact, there are so many people who have a goodwill which may be extant in value only in the digital world. For example, the commercial value of the Instagram account of a person who has made a name while promoting products would be immense. So, with the aggregate value (whether commercial or sentimental) of one’s net digital assets increasing, issues relating to ownership of online accounts and succession of digital assets are becoming more and more significant.
WHAT MAY HAPPEN TO YOUR DIGITAL ASSETS ON YOUR DEMISE?
There are primarily two roadblocks on the flow of digital assets after one’s demise, if not planned in an efficient manner.
- One would be the location of your digital assets. Many assets may be readily on your devices such as your laptop or tablet, or they may be all on the cloud. In order to enable your heirs to even be informed of your digital assets, the same ought to listed out in detail.
- The second road block would be identifying or determining what rights are associated with various information with regard to your digital assets. This can be difficult, as the rights differ greatly from one provider to the other, as the following summary shows:
Facebook: It allows users to decide whether they want their account memorialised or permanently deleted in advance. A memorialised account has the word “Remembering” shown next to the person’s name. Content, such as photographs and posts, remains visible to the audience it was shared with, but the account cannot be changed unless the deceased added a legacy contact. If an option is not chosen and Facebook is made aware of a death, their standard policy is to memorialise the account.
Gmail: Authorized representatives can request for content. However, Google does have an interesting tool known as ‘inactive account manager’ by which persons can opt to have the data of their Gmail, Google+, YouTube and Blogger accounts to be either deleted or to be sent to another account after three, six or 12 months of inactivity.
Outlook: The deceased’s next-of-kin or guardian can request for content such as emails and their attachments, address book, and contact lists, if such content now belongs to the person making the request. The content is given vide a DVD. Microsoft’s policy expressly states that it does not transfer ownership of the account or give legal heirs login information.
Instagram: The accounts can be memorialised by anyone who has known the deceased making a request by providing proof of death.
Twitter: A family member or any other authorized person can contact Twitter for deactivation of the deceased’s account. After 30 days of deactivation the account is permanently deleted. Twitter too refuses to give anybody access to the deceased’s account.
Yahoo: Yahoo provides neither the content nor access to the account of the deceased user. The only option is deletion of the account.
Linkedin: Account can only be deleted, not transferred.
Bitcoin Wallets: Bitcoin expressly conveys to users to ‘Think about your testament’. If the peers and family of the deceased are not aware of the location of the deceased’s digital wallets or passwords, the funds are non-recoverable.
Managing all the digital assets as mentioned above with their specific policies can be daunting. If our loved ones wish to retrieve our photos, videos and other data after our demise, assuming they can do so, it would usually entail a long and cumbersome process. The issue of ownership of digital assets becomes irrelevant when our heirs cannot access them or are left at the mercy of online service providers.
So in order to ease the process and ensure the wilful disposal of your digital assets, estate planning of digital assets becomes crucial.
THE WAY AHEAD:
In India, there are no specific legislations yet that deal with digital estate and succession planning. This means that families have no clear rights in relation to access, let alone ownership, of the online life of a deceased. If they do not have the required password and login details these assets can remain locked away, or sometimes online indefinitely. Even if they have the password, they may be in breach of the service terms of the provider if they use that information.
Having said that there are a few things that people should consider. Clients should be encouraged to keep a list of digital accounts and wealth either with a neutral person or with trusted family members. However, it is crucial that such passwords or details not be included in the Will, as the Will becomes a public document if and when probate is granted.
Wills should have definitions of digital assets and digital accounts and powers allowing the executor/s deal with them. Although it is debateable that the general powers of the executor in a well-drafted Will should be sufficient for this purpose, as abundant caution and to not leave it on chance, express provision for digital assets should be made in the Will. In the corollary, to avoid a generic interpretation of ‘All Assets’ in the Will/ Intestate where digital assets might be bequeathed upon a beneficiary who receives all remaining assets by way of a residuary clause it is imperative that digital assets are specifically dealt with in the Will.
Due to rapid changes in technology, digital wealth is forming a greater proportion of people’s estates and in fact if you look at it closely is a form of a legacy which technically can ‘live’ forever. You may die but your account may carry on forever, making them absolutely significant in terms of estate planning.
CONCLUSION
Succession laws have yet to evolve to deal with the challenges of digital wealth. The approach that ought to be taken on what happens to digital wealth on one’s demise should be similar to traditional estate and succession planning. However, it is complicated by the intangible nature of the asset. It is advisable that clients/ individuals maintain a list of their digital assets and a solution is worked around to provide the beneficiary various passwords of the deceased.
Without adequate estate planning, the bequest of these ever-evolving digital assets, will only be clouded with anxiety and uncertainty.
FOOD FOR THOUGHT
- The impact of your right to privacy after your demise, on your digital assets without estate planning.
- Could a legatee or legal heir have to address the issue of ‘digital liabilities’?
- The staggering chances of an identity theft of your digital assets, post mortem.