26-01-15

Your iPhone and your will: succession planning in the digital era
A listener of BBC Radio recently complained about the difficulty of dealing with his late father’s iPhone after his death.  Mark Rose explained that he simply wanted to delete the information on the iPhone and was told by Apple that he needed a specific court order against Apple to take ownership of the iPhone and all his late father’s accounts.
 
Our private client partner, Andrew Kidd, was called upon by the consumer affairs programme You & Yours to offer advice.  He explained, “a grant of probate is a court order.  It is conclusive as to the appointment of the executors and as to the validity and contents of the will.  It enables executors to supply conclusive proof of their entitlement to deal with the deceased’s assets”.
 
The issues form part of a wider picture and what people might not appreciate is that whilst we have moved into a digital era, we have also moved from an “ownership” model to a “subscription” model.  Some of the implications of this model are revealing themselves when a user dies.
 
Whereas in the good old days, our CD collection was easily dealt with, contents of iPhones – an iTunes library, for example, may not be the asset they appear.  Buying music from iTunes is not ownership; it is simply a perpetual licence to play the music.  The licence is personal and therefore does not devolve on death to beneficiaries.
 
Some digital service providers (“DSPs”) have better faced into the issue than others.  Google’s Inactive Account Manager, for example, allows you to tell the service what you would like to do with your data after a certain time of inactivity.  Facebook, on the other hand, “memorialises” accounts.  This means that you cannot log in or add friends but your wall remains active so friends can post memorial messages.
 
And what all this means for when we write in our wills?
 
It is worth remembering that Apple is based in California and indeed, many of the legal requirements referenced in the terms and conditions of Apple and other DSPs (the most prominent of which are based in California) relate to the laws of the State of California and not the UK. 
 
Our counterparts in the US are coming up with creative solutions.  Some lawyers suggest setting up a trust and using it to purchase digital assets.  By naming themselves and their children as trust beneficiaries, the innovation is that users can pass down e-books or music, without breaking any ban on third-party transfers.  This idea is very new and has not been legally tested and DSPs could react by easily closing this loophole if they wished. 
 
In the UK we generally recommend that clients complete a “personal assets log” including digital assets and clients are advised to consider how to ensure those dealing with the estate will be able to access digital assets.
 
This is not the same as leaving a list of passwords or PINs which could breach the terms and conditions of the account and give rise to an offence if an executor uses that data, however well meaning.
 
Documenting your digital presence, in all its forms, will make it easier for your executors to identify what needs to be done.  It will enable them to more easily work with the DSP within their terms and conditions and practise prevailing at the time in dealing with matters hopefully in accordance with your wishes.
 
Andrew Kidd was speaking to You & Yours on BBC Radio 4 on 26 January 2015.  
 
For further information on wills and digital assets please speak to Andrew Kidd on 020 7395 8409 or e-mail akidd@clintons.co.uk
Article by Andrew Kidd