Asset protection in the digital 'Wild West'
By Hilesh Chavda (pictured), a private client partner with city law firm Spencer West – Digital assets are an integral part of our lives and will become even more so in the coming years. But it is a regulatory Wild West out there which makes it difficult for anyone, especially executors and trustees charged with safeguarding and managing assets to deal with digital assets.
What is the problem?
Almost everyone has digital assets, including photographs and videos stored online, valuable work (eg novel, code, recipe book or invention) stored in the cloud, e-books, social media posts, gaming avatars, emails, cryptocurrencies and non-fungible tokens (NFT) to name a few. Some of these can be very valuable or have sentimental value.
What if you want to pass them to a trust, particularly if they are valuable such as crypto currencies or NFTs which maybe an artwork or Sir Tim Berners-Lee’s original source code used to create the internet? Most people have not stopped to think about this. Most governments have not thought the issues through either.
There are a number of issues with cryptocurrencies. For executors, the issue is knowing whether or not someone owned cryptocurrencies. If they know they had some, how do they find out about them? Assuming they have some details, they need to access the assets and so will need the password. If this is saved electronically or on email, there are problems, which I discuss later in this article.
Whether its executors or trustees, there is also the issue of valuation. What is the value and should they be holding on to the cryptocurrencies given their volatility (at the moment at least)? They are likely to be extremely nervous about holding these types of assets as timing a distribution incorrectly could create a huge tax liability where they increase in price massively. Alternatively, if the crypto assets are to be sold before distribution to beneficiaries, a sudden drop in value will leave the beneficiaries unhappy and wanting to sue the executors/trustees.
Posts and comments can have sentimental value for loved ones. Social media accounts can also be hugely valuable or have potential to be exploited. Some people can build hugely successful and valuable social media accounts, have valuable assets and creations on platforms such as gaming avatars.
Again, on death, what will happen to the account? The fundamental issue with most accounts is the inability or difficulty in accessing them. However, the other additional frustration is that the different platforms have different practices when someone dies. Facebook allows account holders to pre-plan and appoint a legacy contact. They also give you the option of memorialising your page. Instagram has similar memorialization features though you cannot appoint a legacy contact, which is strange as Instagram is owned by Facebook. Twitter and LinkedIn have no such pre-planning options.
Again, emails can be important as they may have sentimental value. They may also have significant economic value if, for example, the email account has all the details of an important invention, literary work or passwords to cryptocurrencies.
Emails share some of the problems that we have with social media in that the different internet service providers (ISP) have differing policies of dealing with accounts on death. Some will accept a death certificate and others may insist on a court order.
A particular concern with emails is whether account holders want people to access emails after death. Privacy is an important concern which the ISPs and courts have been grappling with. The ISPs do not want to breach privacy and are reluctant to do so as there are, quite rightly, severe sanctions.
This has forced determined executors to go to court. This is not ideal and there needs to be a more consistent and streamlined approach to accessing email, but this needs to be balanced with ensuring the deceased’s rights and wishes are recorded and followed.
The future and what to do now
There are a myriad of issues. The ones I’ve discussed here are only the tip of the iceberg. This is a concern as the problem will only get bigger as our personal and business lives continue to move online. We are losing control over our digital assets, without realising it.
This does not seem to be a priority for most governments. Robust, but flexible, rules are needed to regulate procedures of ISPs in relation to how a user’s data is dealt with on their death.
Until then, it is up to individuals and their advisers to take steps to make it easier for executors and trustees to deal with their assets. It is important to keep an accurate record of assets including cryptocurrencies, NFTs, email and social media accounts and wishes.
It is vitally important to provide the relevant access which is a bit trickier. It is far from ideal to just write passwords down as they will change and there is the problem of storing it securely. There are “password manager” programmes out there which can provide a solution.
A final point is to check the terms and conditions of the ISPs so people know whether the books, music and other media on it are owned or there is a licence to just use them, what will happen on death and whether there are pre-planning functions.
The practicalities for executors and trustees may be less than ideal due to identifying assets, uncertainty of what they need to provide to gain access and valuing the multitude of digital assets, but the least people can do now is make their wishes clear and hopefully legislation will catch up.