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Can my Will include my ‘digital assets’ like photographs stored on my phone or online?

In an age where everything from photographs to bank accounts can be stored and accessed online, there are growing calls for people to be crystal clear about what they want to happen to their 'digital assets' after they die.

This could even extend to making a provision for online data to be included in Wills. If this happened, it would mean families could gain access to content which might otherwise be lost forever including their loved one's photos and posts on social media sites like Facebook.

So what exactly are 'digital assets'?

Digital assets are defined as digitally stored content or an online account owned by an individual and include images, photos, videos, music and text files. It also covers other digital content such as data in a database.

These assets are stored either on a device owned by an individual ("locally"), or on devices accessed via the Internet ("the cloud"), often as part of a service offered by a third party and governed by a contract with the individual.

Some online accounts can be considered assets in themselves and have value to an estate. There are email accounts, social media profiles (such as YouTube or Flickr), social networking profiles (such as Facebook), and many others. These are also governed by a contract between the service provider and the individual.

Controversial and complicated

The issue, however, is a controversial one. In May this year, a court in Germany ruled that the parents of a dead 15-year-old girl had no right to access their daughter's Facebook account even though they said they only wanted to see her chat messages and posts to try to establish if she had committed suicide because she was being bullied.

Facebook argued that opening up the account would compromise the privacy of the teenager's contacts. And in the UK, online assets such as social media data, rest with the service provider upon death although families can ask for accounts to be deleted or for partial access.

At the moment, gaining access to an on-line account after someone has died can be extremely complicated and difficult with privacy policies varying hugely from website to website.

But there are increasing calls for people to have the right to determine what is seen and what isn't after their death and for legal reforms to allow them to set out in their Will whether their families can have access to their online accounts or not.

Clear instructions

The Law Society, the representative body for solicitors in England and Wales, says that people should leave clear instructions about what should happen to their social media, computer games and other online accounts after their death.

Leaving a list of online accounts, rather than passwords, should make it easier for family members to piece together your digital legacy and stick to what you want, the Law Society believes.

For example, if you have a Twitter account and you have left clear instructions on having it deactivated, it will be easier for your executors to have it closed.

Here at Wards Solicitors, we ask people to complete asset record sheets which means we get to know of any paperless accounts. We ask for pins and passwords to these accounts which are then sealed in an envelope to be placed with the Will.

For advice on making or updating a Will, please contact our Wills, Probate and Mental Capacity Team.

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