What are digital assets?
Digital assets are more correctly called digital ‘records’. This is because the usual meaning of digital assets are not only assets of a person (like bitcoin) but more broadly to non-asset items such as social media accounts and digital music.
So, digital records mean records that exist in digital or other electronic machine-readable form. They are created by you and for you and generally, can only be accessed by you. For example, Facebook, Twitter, LinkedIn, Instagram, You tube, your website, email accounts, cloud storage, photo storage, PayPal, computer access. Also eBook collections, eBay and Amazon, frequent flyer points and spotify. The list goes on and on.
Most people today are assembling digital records of considerable volume and importance. Some are sentimental and others have financial value, for example, domain names can be crucial for branding in a business. Access to online bank accounts can be required by an executor to ascertain what the deceased owns.
Digital registers
A digital register lists online digital records and accounts, with user names, passwords and instructions about using and managing these accounts.
A register can be in the form of an excel spreadsheet, a word document, a hand written list or a digital register can be recorded by an app such as 1Password or After.me.
Ideally, a digital register is kept with your Will or in a safe place, that can be easily found.
If you would like a pro forma word digital register to complete, please email Linda Alexander on linda@lalaw.com.au.
New Scheme proposed
There are no laws currently in place in NSW to provide a uniform system as to who is authorised to deal with digital records when someone dies or has lost mental capacity.
Hopefully this will change sometime soon as the NSW Law Reform Commission has released a report earlier this year (2020) proposing a new scheme for Australia if all states and territories agree.
In a nutshell, the new scheme proposed by the Law Reform Commission allows the user of the digital records:
- to appoint their executor or someone else in their Will to manage their digital records after they die or;
- appoint their guardian (via guardianship appointment) or attorney (via enduring power of attorney) to manage their digital records if they lose mental capacity.
All digital platforms would be governed by the new laws so a uniform system is in place.
We will wait to see what develops.