Peter Tyrrell, Partner and joint Head of Private Wealth at BPE Solicitors, discusses digital assets and the arrangements that you should consider putting in place to ensure that they are dealt with according to your wishes as part of your estate.
Digital assets are commonly overlooked for the purposes of creating a Will. In recent years however, as the use of online banking, social media and media facilities for storing photographs and videos has increased, this is becoming an ever-increasing topic to discuss with clients when advising in relation to the preparation of Wills.
This article explores what digital assets are, the different types of digital assets out there and how this may be relevant to you and the arrangement of your Will and personal affairs.
What are ‘digital assets’?
There is no specific legal definition for a digital asset, but it is highly likely that, in this day and age, you will possess some form of digital asset, whether this holds a significant or nominal monetary value, or sentimental value alone.
Common types of digital assets include photographs and videos stored online, blogs, e-books, social media statuses, music, and multimedia as well as the emerging world of bitcoin and other cryptocurrencies. The list goes on…
With the ever-increasing number of bloggers, vloggers and influencers on Instagram and other social media platforms, and online storage of photographs and videos, it is highly likely that you hold some form of digital asset, no matter how small.
However, save for the potential monetary value in cryptocurrencies, the digital assets listed above are far more likely to hold sentimental value alone rather than anything more, as they probably cannot be resold and may quite frankly, only be of interest to your close family and friends, when you pass away.
If your Will is silent on the subject, such digital assets will simply form part of your residuary estate for your personal representatives (who are the individuals you chose to administer your estate) to distribute in accordance with the terms of your Will.
It may be the case, however, that you would prefer such assets to be dealt with separately, or at least for your personal representatives to be aware of these assets.
My digital assets are purely sentimental value…do I need to do anything?
To put it bluntly…no. As mentioned above, if your Will is silent on the matter of digital assets, they will simply form part of your estate. If your personal representatives are not aware of their existence, in the case of social media etc., the accounts will simply expire and be closed down after a certain period of time.
Alternatively, if you want to ensure that your Will does encompass all of your digital assets, that these are easily identifiable by your personal representative and that they are dealt with as you wish, this should be discussed when you are putting your Will arrangements in place. Certain clauses can be included in your Will to encompass these issues and other steps can be taken to ensure that the existence of various digital assets, online banking facilities and passcodes etc., are made known to your solicitor and / or personal representatives.
What if I own digital assets that hold more than purely sentimental value?
Certain digital assets, such as blogs, domain names, digital artwork, poetry etc., (again this list is not extensive) could hold significant monetary value.
It is the Intellectual Property in these assets that holds the monetary value. Intellectual Property Rights can exist in intangible property and include copyright, trademarks, designs and patents, for example.
In this case, if you think that there are Intellectual Property Rights existing in any of your digital assets that may have a monetary value, should you do anything? Yes.
Depending on the Intellectual Property involved and the type of digital asset, it may be appropriate to appoint separate personal representatives / executors to deal with these assets when you pass away. This will ensure that such assets are dealt with properly and that any existing monetary value is recognised and maximised for the benefit of your chosen beneficiaries (whether the asset is retained or sold), rather than being frittered away or simply forgotten.
Whether you hold digital assets of purely sentimental value, or you think that they hold a monetary value, be it significant or not, this is certainly a topic worth discussing when you are preparing to put Will arrangements in place, to ensure that your wishes are carried out to the fullest extent possible and that your personal affairs are dealt with appropriately when you pass away.
For advice on your own digital assets and how they should be dealt with as well as preparing a Will and wider estate planning, contact Peter Tyrrell at firstname.lastname@example.org or call 01242 248209 or another member of the BPE Private Wealth team.
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