Is there digital life after death? Providing for virtual assets in your digital estate

It’s the year 2016 and the majority of our world citizens today live digitally through online social media platforms, gaming environments, websites, chat rooms, shopping sites and more. The virtual world has become an undeniable reality of our modern lives and one can only philosophize over when physical reality will start to play second fiddle to your digital life! The growth of our digital world however also gives rise to new legal questions relating to your digital ‘assets’. What will happen to my online gaming profile, Facebook account, online banking account etc. upon my death? The reality is that these digital assets also need administering and what happens to it after you’ve passed away may in fact, be up to you.

So what is a digital asset you may ask? Is it something I paid for and which may have resale value? In fact, it’s much simpler than that. Your Gmail and Twitter account are two examples that are regarded as virtual assets in addition to your digital music libraries, e-book collections, domain names and online photo galleries etc. stored on an array of digital platforms.

However, South African legislators have yet to attempt to classify what would comprise digital assets and as a result, digital inheritance remains largely undeveloped. But should these assets then as a consequence be overlooked in the administration of wills and estates? Definitely not. In the USA, five States already have draft legislation in place to introduce the regulation of digital assets and the rest of the world will soon catch on, South Africa included.

Now that digital assets are becoming a material part of who we are and what our asset base is, a few aspects of estate planning and the estate administration process must be considered to ensure the validity of the entire process and to protect the sensitive nature of the information divulged:

  • South African law unfortunately does not yet provide for a will in digital format (a digital will), and accordingly your will must still be in writing in a hard copy format so as to comply with the prescribed formalities.
  • Be careful not to list your digital assets in your current will, particularly where they may be sensitive or confidential in nature, as your will becomes accessible to the greater public upon registering it with the Master of the High Court after your death.
  • Make a clear and thorough inventory of what digital assets you may have and how to access them (whether physically or digitally).
  • Then indicate in your will where the inventory of your digital assets can be found by your executor following your death.
  • If any of these assets may continue to generate an income, it will be important to bequeath these assets and / or income in your will to a beneficiary or include them in your family trust.
  • Lastly, it is advised that you properly identify how you would like to dispose of these assets (if necessary or who you wish should deal with them and how.)

In the absence of South African legislation expressly addressing how and when to provide for your digital assets in your will, you may require some expert help. Don’t just try and provide for your digital assets by yourself. Consult with a specialist, and firstly establish whether it is necessary to deal with your digital assets in a will – and if yes, how you wish to deal with them and who should administer them after your death. An expert can help you properly address these assets (where necessary) in your will until the time comes when legislative regulation of digital assets becomes available.

November 21, 2014

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