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Digital inheritance: what next for Scots law?

Facebook recently surpassed 2 billion active users worldwide, and many millions log into Twitter, Instagram, and other social media networks every day. However, there is still legal uncertainty surrounding the question of what happens to our online accounts after death. In this blog, we consider the law in Scotland, and whether digital assets should be considered in your inheritance plans alongside “offline” property.

EU law project

A group of European lawyers are urging the EU to provide for rules that would force internet platforms to pass on data belonging to a person who has died. They argue that internet companies, banks, and social media providers should all be required to hand over a person’s data in the event of their death, noting that, in the US, laws are already in place to force companies to pass on such data.

The need for clear laws on the matter is highlighted by a recent German court case, in which the court agreed with Facebook’s decision not to allow parents access to their deceased daughter’s Facebook account after someone else had requested that Facebook shut down her profile. There were no laws in place to prevent Facebook from denying the girl’s parents access to her account, nor any means of preventing her friend from having her account shut down.

Hopefully, if the group’s project is successful, EU law will provide clarity on who can access a deceased person’s account, whether they can deactivate the account, and whether they can download digital assets associated with the account, such as photographs and videos.

What will happen to my online accounts under Scots law?

With Brexit approaching, it is unclear whether any new EU laws on inheritance will apply in Scotland. Nonetheless, we will follow these plans with interest, and we hope to see clarity on digital assets in Scots law too. There are currently no specific rules in Scotland that would allow family or executors of a deceased person to have access to the person’s online accounts.

Some social media platforms already allow you to take steps to ensure that the content in your account is protected after you die. On Facebook, you can nominate a “legacy contact”, who can either request the removal of your account or manage a “memorialised” account (for example, updating your cover photo, sharing a final message or details of a memorial service). This function allows you to discuss your wishes for your profile with your legacy contact, and make plans for your account in the same way as an “offline” asset.

Not all social media services offer a legacy contact service, however. Some, such as Twitter, can deactivate the account of a deceased user, if they are contacted by a person authorised on behalf of that person’s estate. You might, however, wish for trusted family members to have access to your accounts, rather than just the ability to shut down your account. For example, you may have stored photographs, videos, and important messages on your social media accounts, and would like for family members to be able to access and download these after your death.

Other digital assets

As well as “sentimental” property in online accounts, you may also have email accounts associated with your business, which you would like a family member to have access to in the event of your death. A business might involve other forms of digital property, such as domain names and websites, which also require password access. Some personal accounts may have a monetary value, such as PayPal and any forms of digital currency (e.g. Bitcoin).

What next?

The German case and the lack of clarity on access to the online accounts of a deceased person in Scots law, highlight the importance of making plans for your digital assets, with the assistance of a solicitor.

One option is to pass on your passwords to your solicitor while making your Will. These would be stored securely, and only handed over to trusted family members or executors in the event of your death. In terms of digital assets with monetary value, inheritance tax issues may arise, and you may also wish to take this into account when planning your inheritance.

Contact our Professional Executry & Probate Solicitors

At Wilson & Fish, our team is ready to discuss your inheritance plans for your online accounts and digital assets, and advise on how best to protect these accounts after your death. While the law is not yet fully developed in this area, we will provide up-to-date, pragmatic advice, and advise on how changes in the law might impact your inheritance plans.

 

If you would like to find out more about writing a Will or about our Executry and Probate services, then contact our specialist lawyers today.

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