September 21, 2021
Giving families better access to the digital assets of deceased loved ones
A new report highlights the extent of the distress caused by being cut off from digital assets when family members die or become incapacitated.
Items such as social media accounts, photos and emails have become a common part of estate planning and administration in recent years. A new survey of 500 professional inheritance advisers found that nearly 60 percent have dealt with questions from clients about digital assets and 90 percent expect this to increase in future. Clients most commonly asked about social media, email, cryptocurrencies, and cloud storage. The top five providers most mentioned by clients regarding digital assets stored in the cloud were Apple, Google, Facebook, Microsoft and Dropbox.
The results also show that nearly a quarter of the respondents had clients who have experienced difficulties accessing digital assets of a family member, causing significant distress and frustration in many cases. The problem is compounded by a lack of legal clarity when it comes to property rights. One in five respondents also mentioned an uncooperative attitude from service providers in situations where accounts cannot be accessed.
According to the report's authors, legislators must put in place much clearer rules on property rights and rights of access by personal representatives. The authors also call on cloud providers to come to the table with inheritance planning experts to find more effective solutions for post-mortem account access and enable peace of mind for families.
Only 6 percent of estate practitioners considered that there was a straightforward process for accessing digital assets stored in the cloud in their jurisdiction. Over 85 percent stated that cloud providers should provide better solutions for managing access to digital assets stored in the cloud after death or incapacity. This shows not just the need for legal reform, but also for cooperation with cloud providers to find practical solutions.
Dave Michels of the Cloud Legal Project at Queen Mary University of London says that "digital assets can have great sentimental value, so it's important that people have legal certainty as to what they can pass on after death. I know I'd want my wife to access our family photos stored in my iCloud account, after I die."
Professor Christopher Millard of the Cloud Legal Project at Queen Mary University of London says that "the Law Commission of England and Wales is currently reviewing the property status of digital assets under English law. We look forward to their recommendations and we hope that they will address the urgent need to update succession law for the 21st century."
Emily Deane TEP, technical counsel at STEP, says that "in just a few short years, digital assets have become fundamental to many aspects of our lives. From sentimental items like photos and social media content, to private information like confidential emails, passwords and medical records, these items are now just as important to our lives and identities as traditional assets."
"Family members need to manage loved ones' affairs after their death so must have access to financial and other information stored on computers and online cloud services. But an inability to obtain access is increasingly a cause of significant stress and concern."
"The need for effective solutions to this problem is becoming ever more critical. STEP and its members want to see better engagement from governments and service providers globally so that families can plan for their futures with certainty and clarity."