Digital Wills: Inheritances and New Technologies.

Area: Successions and New Technologies
Author: Francisco José Marquez Villen

DIGITAL WILL
New Technologies and Law

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 this information forms part of a person’s digital assets and estate.
When a person passes away, this digital estate remains in an eternal virtual limbo due to the lack of foresight within the 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.

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

The Reverse Digital Will, on the other hand, involves not leaving any of the digital estate’s belongings as an inheritance.
The entire digital estate would be deleted, thus avoiding any misuse, hacking, or phishing. Although it is considered a form of digital succession, what is left as an inheritance is an obligation to act—in this case, to delete the digital content 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 view of the previous considerations, it would be advisable that when granting a (traditional) Will before a Notary, the following be included:

§ Express provisions and clauses regulating the digital estate and access to all email accounts, messaging, social networks, and online services, including a list of those held at the date of the granting of the Will, establishing the conditions and beneficiaries and/or giving instructions for their use.

§ Generic provisions and clauses declaring inheritance rights over future online services, networks, or accounts not included in the specific clauses, as well as reinforcing the right of access to passwords for the indicated persons.

§ Provisions and clauses on economic valuation for the case of rights that may have a determined or determinable value and are related to digital services, accounts, messaging, and/or networks, for the purposes of quantification, valuation, and possible 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.

At IN DIEM Abogados, through the advice and study of our legal professionals, effective measures and solutions are already being established for succession planning, including all its fields.

Francisco José Márquez Villén
January 2016.
IN DIEM Abogados
www.in-diem.com
info@in-diem.com
Tel +34 954 2705 22