What are digital assets?
Investopedia defines a digital asset broadly as anything that is created and stored digitally, is identifiable and discoverable, and has or provides value.
For some of these, the value may be financial – this would be the case for crypto-assets clearly, but might also include documents, images or films stored digitally, for example. However, other digital assets may be valuable only to a small number of people - for example, family photographs taken on a phone or tablet.
While the value of photos, videos and other such digital assets may be sentimental rather than financial, they may be of huge significance to you and to your loved ones. Therefore, it is vital that you are able to ensure that after your death, they pass to your family or other chosen heirs.
What is STEP and why are they campaigning?
The Society of Trust and Estate Practitioners (STEP) recently commissioned a YouGov poll of 2,000 people in the UK, in which 64% of respondents said that what happens to their sentimental digital possessions after they have gone is either fairly or very important to them, but 57% have made no plans at all for passing on their digital assets. Only 3% of respondents had used the digital legacy tools provided by Google, Apple and others.
STEP also prepared a report in 2021 which noted, among other things, that a quarter of estate practitioners reported that their clients had experienced difficulties accessing or transferring digital assets on death or incapacity. It also highlighted that the most common queries from clients related to social media, email accounts and cloud storage for photos and documents.
As a result of this research, STEP launched a campaign in June this year in an attempt to address these issues. It aims to make people think about what would happen to their photos, social media accounts and videos after their death, and highlights that, without planning, they may be lost forever, depriving their families and future generations of these digital memories.
What is the campaign aiming to achieve?
STEP states that it and its members are engaging with governments and service providers globally to produce industry solutions and best practice that will help families plan for their futures with certainty and clarity. They are calling for the following changes:
1) Every service provider to provide, and encourage users to make use of, a comprehensive legacy tool
Some service providers, including Facebook, Google, Apple and Instagram, have introduced tools (see https://memories.step.org/update-your-legacy-settings/) that allow people to nominate someone to deal with their accounts when they die.
However, these tools can vary in their functionality and usefulness, are relatively unknown and require people to plan ahead. The aim of STEP's campaign is to raise awareness of them through the campaign website.
2) Every service provider to have a clause that allows access to a nominated person within its terms and conditions
To avoid the need for court orders or other potentially costly and time-consuming legal steps, STEP is calling for every server provider to include a clause that allows access to a nominated person within its term and conditions.
3) Legislation in every country that allows access to a nominated person in the appropriate circumstances.
Where service providers do not allow access via their service agreement, STEP is asking for legislation in each country to provide a default method of access.
The campaign notes that this is starting to happen – for example, the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) in the United States. This permits online service companies to provide certain people with full or partial access to online content at their discretion. However, this type of legislation is not widely implemented in other countries.
Encouragingly, in the UK, the Law Commission of England and Wales launched a project in relation to digital assets in 2021. However, greater efforts and cross-border collaboration are required to achieve consistent international standards.
What can I do in the meantime?
STEP's aims are going to take time to achieve. In the meantime, individuals can do the following for themselves and their families and friends, and to help STEP with its campaign:
- Think about the digital assets that you have and that you would like to pass on after you die – if you haven't already done so, sign up to the tools provided by the service providers you use.
- Spread the word – share STEP's campaign with your friends and family and more widely on social media, so that fewer people will be left struggling to access their loved ones' photos and other memories after they have gone.
- Call for change – if your service provider doesn't have a legacy tool, ask them to provide one or consider changing provider.
In the meantime, if you have any questions about your digital assets and how best to protect them, or about your estate generally, please contact John Annetts (Partner and Head of Administration of Estates) or another member of our Private Client team.