What Happens to Digital Assets after Death?

Monday August 13, 2018

What Happens to Digital Assets after Death?

A recent German Court victory for the parents of a deceased teenage girl who had been battling Facebook to access her account for five and a half years highlights the need for consideration to be given to the fate of social media accounts and other digital assets after death.

While most of us plan for the disposal of assets such as houses, bank accounts, artwork and jewellery after we die, we may not have given as much thought to what will happen to our digital property such as social media accounts, photos, videos, subscriptions and online gaming and bank accounts.

In the German case, Facebook had "memorialised" the girl's account in the wake of her death, which meant her parents could not access any messages she had sent via Facebook. The girl's parents had asked the social media giant to allow them access to her account in order to determine if her death had been an accident or suicide, but it had refused.

The Federal Constitutional Court ultimately held that the girl's Facebook account should be treated the same way as her diaries, letters and other possessions and form part of her estate, and granted access to her parents.

Unlike Germany and other nations such as the USA, Australia has no legal framework relating to the disposal of social media accounts and other digital assets after death. However, NSW has recently launched an investigation into the issue.

In Australia the fate of a social media account after a user's death is in the hands of the organisation providing the service.

Facebook, for example, allows a user to nominate a "legacy contact" who has the authority to request the account be deleted. A legacy contact can also write posts and update photographs after a user's death, but cannot log into the account. If no legacy contact has been nominated, an account can be "memorialised" if Facebook is provided with the appropriate paperwork.

Keeping a digital register, which contains clear instructions on how you wish your social media accounts and other digital assets to be treated after you die, could help ensure your digital property is dealt with after your death according to your wishes. For example your digital register may state that after you die your photographs should be retained, but your Facebook account deleted.

A digital register could also assist your executor, who has an obligation to administer your estate, to more easily access your digital assets after your death.

For a sample of a digital register form please contact Lachlan Vallance – Director & Principal Lawyer, LIV Accredited Specialist - Wills and Estates.