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For many of us, our digital identities are things we take for granted. Facebook profiles, Twitter feeds, Instagram accounts, Spotify libraries. They’re a natural extension of our personalities – a pixel-presented projection of who we are in real life.

And we’re still learning, as a society, what this really means. The digital versions of ourselves can in many ways be more permanent than the disposable nature of face-to-face human interaction. When we write an update, it remains written. A picture remains posted. We might edit or delete every now and again, but what we commit to the digital world will stay stored somewhere for a long time.

In the day-to-day, we moderate and edit our digital behaviour with that in mind. But what we often fail to recognise is just how permanent our online identities will probably end up being. In fact, our digital activity is likely to continue to leave a footprint long after we, ourselves, have gone.

When we are making our general preparations for the legacy that we will leave behind us after our death, we spend time making sure all our legal and financial affairs are in order and that we are doing right by those who will survive us. In the always-online world we live in, it’s time we paid closer attention to our digital legacies too.

From a legal perspective, our digital legacies are a relatively new area, where the terrain is untrodden in many cases. The profession is learning and adapting to the demands of the digital era with each new development. It’s an area that, while still evolving, is already becoming complex.

Hoarders of digital assets

We are all hoarders when it comes to our digital assets, and on so many fronts. As well as the constant stream of information and data we generate through the digital mouthpieces of email, phone messages and social media (all of which are automatically saved unless we choose to delete them, and even then they may not be fully gone), there are the assets we used to own physically, like music, films and books. All are now part of our digital asset library.

Looking at the communications side of things first, email and social accounts, it’s important to be aware of what the law currently says. In the UK, online assets like social media data rest with the service provider after the user has died. This means that the surviving family doesn’t automatically have a claim over them. For example, it took the parents of a German girl who was killed by a subway train six years of legal battling to gain access to her Facebook account.

Families need to apply for accounts to be closed or to be allowed to access them themselves. Using Facebook as an example, they offer the families or friends the option to either delete or ‘memorialise’ an account. The latter effectively freezes it in time and means it won’t appear in ads, birthday reminders or as suggestions for people you may know. You can also nominate a legacy contact to administer your account to some degree after your death and once it has become ‘memorialised’, but this does not include being able to actually log in or have access to messages.

Instagram also offers ‘memorialising’ or the option to close the account, and Twitter allow a verified contact to deactivate the account if necessary. All will require some proof of death, ID or proof of a connection with the deceased.

These are just three examples from an ever-expanding universe of social media platforms. There is not yet an accepted or uniform approach to the issue across platforms and providers, which makes things more complicated.

Room for improvement

There’s also a general feeling that social media companies are not doing enough and that the ball lies at least partially in their court. This is because many of the issues that relatives in these circumstances come up against are down to contractual restrictions in the relationship between the service provider and the individual, and not a result of government legislation.

Some people attempt to get around the problem by leaving behind a good, old-fashioned written list of their passwords (or perhaps, slightly more high tech, an Excel spreadsheet) for their family members to access their online accounts and administer them according to their wishes after they have gone. Sounds like a sensible and pragmatic solution, you might think. Although, the Law Society warns against leaving a list of passwords because it could lead to your loved ones breaking the law by mistake, as well as the cyber security issues it potentially raises.

Nothing left to leave

When it comes to digital assets such as music and films, don’t be fooled into thinking the entitlement to them after you’ve gone is the same as when you physically own them. Possessing a CD album and having the same album on a music streaming service can be very different things in these circumstances.

Spotify, Apple Music and other subscriptions like Amazon are effectively contracts with the individual alone and cannot be transferred. Any music or movies are not part of your estate for the purposes of a Will – they belong only to the account. The account holder borrows them under licence. Once the account owner dies, so does the account, and with it go the assets. From a legal perspective, the contracts leave you with nothing left to leave.

Practical steps

So, what can we do ourselves and what needs to happen at a higher level to start moving towards a more sensible and useable system?

As individuals, it would be advisable as part of the will writing process to draw up a digital directory that contains details of all accounts and usernames so that surviving family and friends have a ready-made list of who to contact to begin the process of managing your digital legacy. As noted, it’s best to steer clear of passing on passwords as, while well-meaning, this could lead to a legacy of unwitting illegal activity or cyber security vulnerability at a time when it would be least tolerable.

In terms of the digital assets you do actually own, like photographs or other files in your possession, it’s important to make sure you have these backed up and in a place where they can be accessed easily by your surviving relatives. These may have important sentimental value for you or your loved ones and it’s in your power to make sure this value isn’t lost.

It’s clear that our digital footprints are becoming a very significant issue and will only increase as a proportion of our legacy planning as time goes on. As such, we need legislation to clarify and extend the circumstances in which an executor is permitted to administer an individual’s digital legacy. This should not be left to social media providers’ policies, given that we are already seeing precedents showing unfair and unjust handlings of families that are grieving.

As for the digital platforms and social media companies, they have a role to play in making the process easier for relatives of account holders or current users preparing to leave behind a respectable and manageable digital legacy. Hopefully, as this becomes more and more a part of our administrative lives and legacies, the process will become easier and more standardised for all of us.

If you’d like some help with drawing up your Will or making plans for your estate – digital or otherwise – please get in touch.

Do you agree that better provision needs to be legislated to clarify and extend the circumstances in which an executor is permitted to administer an individual’s virtual assets? I’d love to know your thoughts. Please leave a comment below.

Author Georgia Samardzija

Chartered Legal Executive, Progeny Private Law

Georgia began her career in 2013 working for Martin Hasyn and Frances Davies, now Directors of Progeny Private Law, and joined Progeny when it was founded in 2015.

Learn more about Georgia Samardzija

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