Digital Inheritance

What happens to your social media accounts when you die?

Traditionally only movable and immovable assets are considered for the purposes of inheritance and / or at the time of making a Will. Often intangible movable property such as intellectual property is also considered. More recently people have also started preparing a Medical Will or a Living Will which provides for the line of medical treatment one would want ( or not want) in case of a terminal illness or a terminal medical condition. What is not being considered is the disposal of digital assets or digital property upon ones death, perhaps for the want of an enabling Law in India.

The Information Technology Act defines data or information as a valuable asset as it provides for civil reliefs such as compensation or punishment as a criminal remedy in case the data is unauthorisedly accessed, copied or tampered with. The Act recognizes ownership of data which is an intangible property and hence the same is transferrable, assignable and inheritable. Broadly digital assets can be defined as Email accounts, Social media accounts such as Facebook, Instagram, Linkedin, Websites or Blogs, Domain names, to name a few

So the question is, what happens to these the digital property when you die ? Can these digital assets be included in your WILL as a part of Digital Inheritance ?

Another point to consider as to why it is important to manage these digital assets after one’s death is because while online accounts have sentimental meaning to some, they are likely to be valuable to hackers, fraudsters and trolls who’d like to assume your identity, sell your information or use your account as a means to launch attacks on other Internet users, like your online friends. The consequences of ignoring our online accounts in our wills might lead to difficulties down the line, as it makes the accounts vulnerable to exploitation.

How to manage the Digital Assets after you die ?

Most of the Digital Assets that you ‘own’ are in the custody of third parties or intermediaries such as your Cloud Service Providers, Email Service Provider, Social Media Companies , Domain name service Companies to name a few. These third parties or intermediaries will have specific terms and conditions to manage these digital assets upon the death of it owner and these terms will be specified it in Accounts Data and Privacy Settings. Thus it is important to change Accounts Data and Privacy Settings to your choice to manage the data in these accounts after your demise. So  in order to manage the Digital Assets after you die, the provisions and settings have to be configured while you are alive.

You may also include the digital assets in the Will to ensure the digital inheritance as per your choice and Will. Here are a few suggestions.

What can be included in the Will for digital inheritance?

1. You may choose to disclose access details of Computers, Laptops, smartphones, digital locks , etc to a particular beneficiary
2. You may disclose ID and Password with directions to access details regarding online financial services such as Bank Accounts, Credit Card / Debit Card details,  UPI / Online Payment Services and other types of sensitive accounts OR prepare a list of all such sensitive accounts and give directions to a particular beneficiary or the Executor to block / close all such sensitive online accounts. (Appointment of a digital heir is however unrecognized by law and may have to be supported by a corresponding bequeathment in the Will. In the absence of the Will, all legal heirs will have rights in the Digital Assets as per heirship certificate or a Succession Certificate as per provisions of the Indian Succession Act )
3. You may choose to manage data residing with third party companies such as Google, Social Media Companies, Cloud Services, Websites and Blogs

How to manage your data in Social Media Accounts after your demise?

Some social media services allow you to designate a person to manage your account when you die or specify whatever else you might want to happen to your account upon your death (by managing the Account and Privacy Settings) Some social media services allow family members to manage the account on production of proof of identity and provide proof your death as below :

1. Facebook and Instagram allows users to memorialize the account or have it permanently deleted. Memorializing the account allows someone to share one last post from the account  in case they want to share funeral plans or post a tribute, change your profile picture and cover photo as well as respond to new friend requests. Any posts shared before the account was memorialized cannot be edited or removed.
   1. Twitter cooperates with an authorized point of contact to work on deactivating an account after the user dies. Twitter will not allow someone to have account access to post anything or make any changes to the account.
   1. LinkedIn has a similar policy to Twitter, in that deceased users’ accounts will be closed out when requested by a friend or family member on production of a death certificate
   1. Google accounts (Google+, Gmail, YouTube and Google search history) under the settings of “Data and Privacy” allows you to set up the “Inactive Account” feature so that the account becomes inactive after Google notices non-usage for the agreed number of months and then allows the designated person have access to files / data chosen or decided by you.  In the alternative ‘next of kin’ can contact Google to close the account or request data, however, it’s up to Google’s discretion to hand over data.
   1. Microsoft email accounts (Hotmail, Live, MSN or Outlook) allow users to submit a next-of-kin request to choose what happens to the account if they die either close it out or keep it active. Microsoft will send them a DVD with the account’s data.
   1. Apple, will allow loved ones to factory reset devices so that they can use them after the owner dies, but they will not help someone retrieve the device’s data.

Third party Service provides will be extremely cautious before handing over any data of the deceased person to a claimant due to the data protection and Privacy concerns and stringent compliance of the applicable Data Privacy laws

Conclusion

Making provisions for disposal of digital assets after death is as equally important as making provisions for disposal of immovable property and movable property such as Mutual Funds, Stocks and Shares and money lying in Bank accounts. This will ensure that the legal heirs or the beneficiaries can use digital asset as per the Will and desire of the deceased and protect it from being wasted or misused. It is therefore advisable to provide for disposal of digital assets in ones Will and also configure the data and privacy settings on third party websites as per your choice.

Adv Vaishali Bhagwat

The author is a practicing civil and cyber lawyer