New Zealand Law Society - Digital estate planning essential

Digital estate planning essential

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Our digital lives are spread across a number of different devices and online services. With our increased reliance on electronic interactions, the number of digital assets held by the average person increases.

As the volume of these interactions increases, questions around how to handle the digital legacy of a deceased or incapacitated person are becoming more common. And digital estate planning becomes essential.

But what exactly is meant by “digital legacy”? It is the digital footprint that a person creates during a lifetime.

This digital legacy can be created in an online or offline digital environment. Relatives and heirs may unable to gain access to the digital legacy of a loved one if they are left without access rights and the correct passwords. That is why it is important to take digital estate planning seriously.

The digital legacy does not only affect our private lives. The digital economy is driven by digital data, computation and automation.

The decreased cost of data storage, the rise of cloud computing and the Internet of Things lead to collection and creation of digital assets on an unprecedented scale, spurring new business processes and models.

Data is the new currency of the digital economy.

Digital asset transfer

For digital assets that are used for or created in the process of running a business, resolving transfer of digital assets may be vital to keeping that business afloat.

From a business continuity point of view, it is essential to plan for the event that one business partner dies or becomes incapacitated.

The surviving business partners may be unable to continue with the business activity if they do not have access to email accounts, document management systems, websites and customer management systems. Delay in accessing these digital business assets may results in loss of revenue or loss of assets.

The monetary value of digital assets may be substantial. Think about rights to domain names, datasets, intellectual property stored in the cloud, Bitcoins, or money in a PayPal account. Most people will have at least some, if not a substantial amount of digital assets with a clear financial value.

For the purposes of digital estate planning it does make sense to break the various digital assets down into three main categories:

  • business digital assets with monetary value;
  • personal digital assets with monetary value; and
  • personal digital assets with sentimental value.

Digital assets with a clear financial value have to be accounted for not only when an estate is being gathered, but at the earlier stage when a will or business continuity plan is being prepared.

It is therefore important to understand the digital assets of your client, their value, and how to manage them in your client’s estate plans or business continuity plans. Some digital assets may be lost if they cannot be accessed and decrypted.

Bianca Mueller is a qualified judge from Germany, a German lawyer (Rechtsanwältin), and is also admitted in New Zealand, practising in Wellington as a barrister. With substantial international work experience, Bianca has developed expertise in technology, intellectual property and international law.

Cyber law webinar

NZLS CLE Ltd is running a webinar that will outline some of the digital legacy issues that arise when managing a deceased’s digital estate.

Entitled Cyber Law – What Happens to your Bits and Bytes When You Die? the webinar will be held from 11am to 12:30pm on September 17.

It will look at the question: Can you provide informed advice to your clients about their online assets, profiles, bank accounts etc when they die? Topics covered will include:

digital assets your clients may have, who has rights to them and how to protect them;

  • online reputational risks your clients need to be aware of and how to manage them post mortem;
  • comparisons of some of the commonly used terms and conditions used by digital platforms such as Facebook and Google; and
  • the risks and challenges that may arise if digital estate management is not addressed early on.

Gareth Abdinor, an associate of Taylor Shaw in Christchurch, and Bianca Mueller will present the webinar. See

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