From photographs and books to social media profiles and blogs, a considerable portion of our memories and experiences have an online-only presence, with the result that they are far more intangible and less easily planned for than physical assets. Although it may seem far more important to clients that the ownership of wealth and property is adequately catered for in succession planning, several cases over the past few years have demonstrated the need for estate plans to take into account what a testator wants to happen to any accounts, passwords and profiles – or risk the loss of personal work and irreplaceable memories.

A prominent case in the UK was that of Rachel Thompson, who fought a three-year court case with Apple to get access to her husband’s iCloud account after he had died aged 39, leaving no will. His account contained 4,500 photos and 900 videos, including the majority of the couple’s photographs of their daughter’s early years and pictures of Thompson’s late father. Apple contested that, as the deceased had not specified what access others could have to his account, it could not release the images and videos without a court order. Eventually, this order was granted by the Central London County Court, with the judge calling for a review of the law in light of modern storage of images and similar assets.

Knowing what you don’t know

Although the outcome of the case was ultimately a positive one, it was costly and greatly protracted the grieving process for Thompson. The publicity around it has given the issue a spotlight, but many people still aren’t aware of what digital assets they own and need to plan for.

‘This is a critical point: the issue is that clients “don’t know what they don’t know”. Therefore, it is about what practitioners are asking in the first place that matters,’ says Sara Adami-Johnson TEP,[1] STEP Digital Assets Global Special Interest Group (SIG) Steering Committee Deputy Chair. ‘When approaching the topic of digital assets during discovery or fact-finding, I directly engage clients with a “laundry list” of usual suspects such as, “Do you have a Facebook/Meta account? Do you do your banking online? When was the last time you purchased something online? Do you listen to music using Apple iTunes or Spotify? Do you use FaceTime/WhatsApp to talk to your grandchildren?” Professionals must become comfortable enough to have conversations grounded in real-life examples to educate and guide clients through their digital footprint.’