Digital Inheritance: What Will Happen to My Internet Contents After My Death?

Have you ever wondered what happens to your social media profiles, your Netflix subscription, or the pictures you have been uploading to the cloud throughout your life once you die? Even though you no longer exist, those “digital contents” will. This is colloquially known as “digital inheritance.” Every day more and more people are showing concern about the fate of this electronic estate, and they also take it into account when they sign their will.

Many of these digital contents, such as those stored in our Facebook, Instagram, or Twitter accounts, are actually a collection of life experiences that gathers sensitive data about us. Therefore, it is important to clearly establish while we are alive how we want these electronic assets to be managed after our death.

Digital assets are generally password protected, and they include, but are not limited to:

• • E-mail accounts
  • Profiles on social media or professional networks, such as Instagram, Twitter, Facebook or LinkedIn
  • Websites and blogs
  • Chat histories
  • Files and personal data stored on servers and cloud hosting services, such as Google Drive or Dropbox
  • Subscriptions to online service providers, such as Netflix, Spotify or Amazon
  • Online-only banking accounts
  • Digital assets, such as cryptocurrencies, whose ownership is proved by providing some access keys
  • Accounts with payment service providers, such as PayPal
  • Electronic commerce operations (if the product is still pending delivery)

Although it may seem trivial, in reality it is a complex topic, as it combines various legal aspects:

• Inheritance rights, which are the rights that the heirs have to receive the assets of the deceased person.
• Contractual obligations (linked to the terms of use of digital platforms, and to the fact that certain legal relationships cannot be transferred to third parties).
• Issues related to the protection of intellectual property (in the event that the deceased person had her/his own creations hosted on the Internet).
• And, finally, the protection of other fundamental rights, such as the right to privacy, or the secrecy of communications.

It is therefore advisable that we expressly state our “digital will” in a testament.

In Spain, the idea of “digital will” is referred to for the first time in Law 3/2018, of December 5, on the Protection of Personal Data and on Guarantees for Digital Rights. However, the term “digital will” is highly controversial among legal professionals. To most of us it seems an unfortunate definition that only leads to confusion. We are of the opinion that a digital will or online will does not exist as such.

The reason is simple: there is a sole inheritance, whether it involves digital or analogue assets. Digital inheritances are no different than “normal” inheritances. Like a house or an investment fund, digital contents are part of the set of assets and rights that constitute a person’s estate. Therefore, no distinction should be made between a digital will and any other will.

Today, some online companies offer assistance to customers with the drafting of their digital will. Please, be careful with this. Be aware that the only service many of these companies provide, and for which they charge their clients, is putting them in contact with a public notary. However, anyone can visit a public notary, no middle person needed.

Having said that, whenever we visit a notary to sign our will, it is advisable to delineate in it our intentions in relation to our digital contents. And, although the inheritance is the same for digital or analogue assets, as said before, it is true that the former have their own characteristics. For this reason, some specific issues should be stated in the will. For example, we need to appoint a “digital executor”, a person that will be responsible for fulfilling any instructions given by us about the use, end goal, and disposal of our digital assets. In addition, it will be necessary to include in the document all passwords required to access the contents, with the peace of mind of knowing that those passwords will be kept confidential until our death.

Finally, it is also worth noting that some technology companies and Internet service providers, such as Apple, Google, or Facebook have added a new feature called “legacy contact.” This feature allows users to appoint the family members or friends that –upon their death– will be granted access to their digital information and will be able to manage their accounts and profiles.