My children laugh about my “online” presence.
Whilst I have Facebook and Instagram accounts I rarely use them and I have not dipped my toe into Twitter.
But I have a substantial photo library backed up to the cloud which archives photos taken by various members of the family covering several generations.
I am concerned to ensure these photos are not lost and remain accessible after my death.
The photographs I have stored online represent significant emotional value for my family.
Current legal position in Australia regarding Digital Assets on death
Unfortunately, in Australia there is no law that directly deals with accessing and transferring digital assets on death (although there are some that effect these matters indirectly) and organisations are largely left to set their own rules.
I have set out some examples below which illustrate the current difficulties:
Qantas Frequent Flyer Points.
Membership of the Qantas Frequent Flyer Program is terminated on the death of a member. The points accumulated are simply cancelled and cannot be redeemed or transferred.
Clause 8.3, Qantas Frequent Flyer Terms and Conditions.
Facebook users can authorise Facebook to deal with their account in one of two ways on death:
- Choosing to have the account deleted, or
- By appointing a “Legacy Contact” to look after the memorialised account.
Google allows users to nominate a “trusted contact” to receive certain nominated parts of data held by Google if the user has been “inactive for a period of time”.
From an Estate Planning point of view, it is often uncertain whether digital assets are in fact the property of the deceased and whether this “property” can be accessed by an executor.
As illustrated above, certain digital asset holders may have policies that prevent executors accessing these assets.
Are there solutions to these issues?
Perhaps you could keep a register of digital assets to record online accounts, usernames and passwords.
But you need to be aware that the register may cease to be of use if it is not regularly updated.
Naturally, there can also be safety and security concerns about keeping such a register. In some circumstances, this may also be a breach of your terms and conditions with the provider.
There are digital legacy services and digital methods of saving access details to accounts, but ultimately there is no guarantee that your executor will be able to access these services or even access your computer where these details are stored!
In December 2019 in a report called “Access to Digital Records on Death or Incapacity” the NSW Law Reform Commission made detailed and comprehensive recommendations for the passing of laws in NSW to deal with these matters.
The recommendations followed similar schemes implemented in Canada and the USA.
I know that we will be monitoring the outcomes of these recommendations closely.
Your Estate Planning
At Tetlow Legal we can assist you with consideration of your digital assets in the context of a comprehensive estate plan. To talk to one of our Estate Planning solicitors, please call us on (02) 6140 3263.