Digital Wills and Inheritance: Digital Assets and New Technologies

Every day, hundreds of billions of files are shared, stored, and used daily throughout the virtual world.

Among the data generated are, among others: those you receive and send in emails and messages; those you share in photos, songs, and videos; the files you buy and store such as music, movies, video games, ebooks, etc.; those you manage in various accounts on your social networks—Facebook, Twitter, LinkedIn, Google+, Instagram, etc.—or virtual websites and domains; the profits you obtain on betting or lottery websites; and the services you contract virtually, from the purchase of a product to telematic procedures with an Administration.

All of this information is part of a person’s assets and digital heritage.

When a person dies, this digital legacy is left in a state of eternal virtual limbo due to a lack of planning regarding the entire digital environment.

Society, the media, and the way of doing business advance much faster than legal regulation, resulting in no form of succession being contemplated for such virtual content and rights; consequently, there is a risk that everything held on the Internet will remain there forever, without being able to be deleted or transferred to a trusted person.

Digital Will and Reverse Digital Will

There are two possibilities to consider in this regard: the Digital Will and the Reverse Digital Will.

Digital Will

A Digital Will is one in which a person expresses their wish for their digital estate to be transferred or transmitted to another person or persons who will be in charge of it.

That is, to bequeath the administration of the accounts, websites, domains, files, and other assets held on the network.

Such administration, by the so-called Digital Executor, would be exercised in the same way as it would be with non-virtual assets after a succession, thereby carrying out the deceased’s wishes regarding the aforementioned properties.

Within this model, we find the variant of digital usufruct; for example, the account of a deceased celebrity, which with its several thousand followers still yields significant profits for its administrators.

Reverse Digital Will

A “reverse digital will,” on the other hand, involves not bequeathing any of one’s digital assets.

All digital assets would be deleted, thereby preventing any misuse, hacking, or phishing. Although this is considered a form of digital succession, what is bequeathed is an obligation to act—in this case, to delete the digital assets that the deceased possessed during their lifetime.

We now face the problem of how to deliver said inheritance to the digital heir; that is, how we would enable the heir to take possession of the accounts and websites.

The only possibility that can be considered so far—it remains to be seen in the future if other options will arise as hardware and software evolve—is to include all accounts with their usernames and corresponding passwords in the will. This, in turn, poses another problem, as passwords are often changed over time and, moreover, it is recommended that this be done regularly; therefore, how this will be resolved is yet to be seen.

Likewise, given the aforementioned lack of existing regulation, some companies have implemented their own policies in this regard.

Thus, we see that Apple has provided that once it detects a user has passed away, it may decide to delete all their data, and that, under no circumstances, will the users’ privacy policy be violated by allowing another person to access the deceased’s Apple products.

At the other extreme is Facebook, which allows the deceased’s account to remain open as a tribute, and Google, which allows the family to contact the Inactive Account Manager to request the termination of the deceased’s accounts regarding the Google products they used.

Trends and Recommendations

Even though the future of the Digital Will remains in the hands of our legislators—who must reshape our succession legislation, designed for the last century and unadapted to modern needs, to turn it into legislation capable of solving the problems that the modern world poses to jurists and citizens—it will be legal professionals who take charge of providing a solution, even if provisional, to the complex succession of digital estates.

These ways of managing digital estates through a will must be considered with the same importance as a non-digital will, especially as our current society becomes increasingly computerized.

In the medium term, most procedures will be done digitally, and monetary transactions themselves are expected to become even more digitized. To this, we must add the creation of virtual currencies such as Bitcoin and the fact that major figures in the digital world, such as Bill Gates, have predicted that by 2030 we will move to Digital Banking and that ATMs will progressively disappear.

In light of the foregoing considerations, it would be advisable to include the following when executing a traditional will before a notary:

• Provisions and express clauses governing digital assets and access to all email accounts, messaging services, social media accounts, and online services, including a list of those held as of the date the will was executed, establishing the conditions and beneficiaries and/or providing instructions for their use.
• Provisions and general clauses that establish inheritance rights regarding future services, networks, or online accounts not covered by the specific clauses, as well as those that reinforce the right of the designated person(s) to access the password(s).
• Provisions and clauses regarding economic valuation for rights that may have a specific or determinable value and are related to services, accounts, messaging, and/or digital networks, for the purposes of quantification, valuation, and potential impact on inheritance rights.

Notwithstanding the above, we have a legal ecosystem that allows for the management of future rights over digital estates; it is now time to consider the inclusion of “Digital Will” clauses within our testamentary provisions as a practical and simple solution to safeguard these types of rights and properties.

It is clear that our digital estate will progressively increase, and with it our credit and economic rights, which would be liable to be lost in the event of death without a will that contemplates them.

Digital Assets, Personal Data, and Modern Estate Planning

Estate planning for digital assets must now be approached from a broader perspective. It is not just a matter of leaving passwords or identifying accounts, but of providing instructions regarding access, preservation, deletion, management, or transfer of digital content.

Digital assets may include emails, social media profiles, photographs, documents stored in the cloud, web domains, professional accounts, payment platforms, digital assets, cryptoassets, copyrights to digital content, and other items of economic, personal, or family value.

Data protection regulations are also relevant, especially when it comes to the personal data of a deceased person, access by family members or related individuals, instructions left during the person’s lifetime, and the terms of use for each platform.

Cryptoassets and Digital Inheritance

The emergence of cryptoassets, wallets, private keys, exchanges, and digital investment platforms adds a unique challenge to digital succession.

In these cases, the loss of keys or technical information can prevent access to the assets, even if there is a recognized right of inheritance. Therefore, when cryptocurrencies or other valuable digital assets are involved, it is especially important to organize the documentation and establish secure access mechanisms.

Planning should combine legal advice, technological security, and prudence in the safekeeping of keys, passwords, instructions, and estate documentation.

IN DIEM Law Firm and Digital Estate Planning

At IN DIEM Abogados, with the guidance and expertise of our legal professionals, we are already implementing effective measures and solutions for estate planning, covering all aspects of the process.

At IN DIEM Abogados, we advise individuals, families, professionals, and businesses on matters related to wills, inheritances, estate planning, digital assets, cryptoassets, data protection, and new technologies.

• Estate Planning for Digital Assets.
• Testamentary Provisions Regarding Digital Assets.
• Consulting on online accounts, social media, and digital content.
• Inheritances involving cryptoassets or technology assets.
• Legal and technical coordination to ensure access and documentation.

If you need advice on digital wills, digital inheritance, or estate planning involving digital assets, please contact our team for an initial legal assessment.

In-person, online, and urgent service. 24-hour support.

IN DIEM Abogados provides in-person, online, and emergency legal assistance from its offices in Madrid, Seville, Málaga, Marbella, Estepona, Las Palmas de Gran Canaria, Almería, and Huelva, serving clients throughout Spain.

The firm has a multidisciplinary team composed of specialized attorneys and professionals with experience in the areas of litigation, tax, commercial, technology, criminal, civil, administrative, labor, and estate law, which allows us to approach each matter from a technical, strategic, and practical perspective.

In addition, IN DIEM Abogados offers urgent assistance when the nature of the matter requires an immediate response or a quick initial assessment of the case.

• Online Legal Advice for online consultations, clients outside the city, or matters that can be handled remotely.
• 24-Hour Emergency Legal Services for situations requiring immediate legal assistance.
• IN DIEM Abogados Offices for in-person service and nationwide coverage in Spain.

For an initial consultation, you can contact IN DIEM Abogados to receive an initial assessment tailored to the circumstances of your case.

Digital Wills, Digital Assets, and Estate Planning

Digital assets are becoming an increasingly important part of a person’s personal, professional, and financial life. It can include email accounts, social media profiles, cloud storage, web domains, digital content, photographs, documents, subscriptions, payment platforms, online businesses, cryptoassets, and other assets linked to technological environments.

Estate planning must take this estate into account, not only for its potential economic value, but also for its personal, family, reputational, and documentary value.

A lack of foresight can make it difficult for heirs or designated individuals to access digital assets, lead to conflicts with digital platforms, or prevent the proper management of digital content, accounts, or assets.

Digital Instructions and Online Account Access

Managing a digital estate involves more than just handing over passwords. It is important to carefully consider what instructions you want to leave behind, who will be able to carry them out, what assets exist, what their value is, and what restrictions apply under data protection, privacy, and intellectual property laws, as well as regulations governing electronic contracts and the terms of use for each platform.

In certain cases, it may be advisable to leave specific instructions regarding the preservation, closure, disposal, transfer, or management of digital accounts and content.

It may also be necessary to distinguish between assets with financial value, personal data, copyrighted content, digital financial assets, and simple personal profiles.

In-person, online, and urgent service. 24-hour support.

IN DIEM Abogados provides in-person, online, and emergency legal assistance from its offices in Madrid, Seville, Málaga, Marbella, Estepona, Las Palmas de Gran Canaria, Almería, and Huelva, serving clients throughout Spain.

The firm has a multidisciplinary team composed of specialized attorneys and professionals with experience in the areas of litigation, tax, commercial, technology, criminal, civil, administrative, labor, and estate law, which allows us to approach each matter from a technical, strategic, and practical perspective.

In addition, IN DIEM Abogados offers urgent assistance when the nature of the matter requires an immediate response or a quick initial assessment of the case.

• Online Legal Advice for online consultations, clients outside the city, or matters that can be handled remotely.
• 24-Hour Emergency Legal Services for situations requiring immediate legal assistance.
• IN DIEM Abogados Offices for in-person service and nationwide coverage in Spain.

For an initial consultation, you can contact IN DIEM Abogados to receive an initial assessment tailored to the circumstances of your case.

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You can find us in Seville, Madrid, Las Palmas de Gran Canaria, Málaga, Huelva, Punta Umbría, Tomares, Coria del Río, Dos Hermanas, Mairena del Alcor, Estepona, Marbella, and Mairena del Aljarafe. We look forward to serving you.

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