Digital Assets & Succession – NSWLRC investigates


Governments can be quite slow in providing the regulations regarding new technologies. In most cases although you own a photograph posted online it is the service provider who owns the access and sets the rules as to who may access their service and how it may be done.

Interestingly whilst we all die – our online presence can exist indefinitely

New South Wales Law Reform Commission will investigate whether new laws are needed to provide certainty as to who can access data after death. It will be the first Australian jurisdiction to do so.

In announcing this investigation the Attorney General highlighted that little thought is given to what happens to our digital assets once we’ve gone or lose the capacity to make decisions about them.

As we have discussed before Wills are governed by state legislation and digital assets are global so any change in succession law will vastly broaden its scope.

Google allows you to use a setting called Inactive Account Manager which allows you to decide what happens to your data and at what time your account is to be treated as inactive – no one ever really dies they just stop using their Google account.

Facebook gives you options for what you want to happen to your account when you die — you can select an ‘inheritor’ (a sort of digital executor) for your Facebook profile, to accept new friend requests, update the profile and cover photo, and write memorial messages.

A Canadian families struggled to obtain their dead Husband and Fathers account details from Apple. The Couple owned an iPad and an Apple computer. When the Husband died his wife knew the iPad’s login code, but didn’t know the Apple ID password

We have posted before about the need to protect your online or digital assets; not just your social media accounts, but your email address(es), cloud, and online financial details; and any hardware (laptop, desktop, hard drives) protected by passwords.

Just as it is prudent (and I would suggest necessary) to have a valid and up to date Will – you should have a digital inventory setting out which details all of your relevant usernames, passwords and secret questions, to enable simple access to your personal and financial information.

In the event that you are incapacitated (this is why a power of attorney is important) your appointed Attorney can control and deal with your digital assets.

Until governments provide clear guidelines that executors are able to log into accounts in order to access the digital assets of a Will maker it might be wise to include a clause in your Will giving that power to your executor – and then writing down your passwords and storing them separately in a safe place.




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