Quick Summary
- An increasingly large part of our lives takes place via the internet. This circumstance leads to the ‘digital estate’ gaining more and more importance. Many legal questions, however, are still unresolved. Thus, testators are required to make their own arrangements even more than in the case of a ‘classic’ inheritance.
- Physical data carriers can be inherited like other objectsfrom the estate of a testator. The situation is more difficult with storage media or Internet accounts that are protected with user names and/or passwords. Here, the access data should be kept safeand assigned to individual persons by will together with the authorisation. Currently, the physical transcription and storageof accounts and passwords in a secure location appears to be the simplest method.
- There are various ways to make and enforce orders about the handling of the digital estate. Conditions, stipulations or the execution of the will in a disposition of property upon death allow for a certain degree of influence even beyond death.
What is the ‘digital estate’ and what does it include?
Much room for manoeuvre, but also legal uncertainty
Today, more than six million people from all age groups and sections of the population in Switzerland regularly use the internet. Therefore, it is clear that digital data and internet accounts will be increasingly important in the future, also in inheritance. Nevertheless, the phenomenon of internet accounts is still relatively new. For this reason, legislators and case law have not yet established a clear way of dealing with this. Much is therefore left to the persons involved themselves and to be settled among them. On the one hand, this provides great creative leeway with regard to the ‘digital estate’; on the other hand, it can lead to legal uncertainty in inheritance if no provisions have been made.
What counts as a digital estate
Before we can show you possible measures, the question is what actually belongs to the digital estate. Since the internet is in a constant state of flux, the relevant legal positions can hardly be listed exhaustively. Rather, one must look at the individual case to find out whether a data stock or a legal position belongs to the digital estate of a person. The nature of these rights can be very different: contractual claims against internet service providers are conceivable, but also intangible property rights such as copyrighted worksor special value rights (such as the register value rights regulated by law since the beginning of 2021). By default, collections of photos, videos, music and texts, email accounts and entries on social media, but also software licences and digital means of payment (‘cryptocurrencies’), among others, are included under the digital estate.
At first, data stored on physical carriers such as CD-ROMs, DVDs or USB sticks that are accessible without encryption are unproblematic. Like other assets, a deceased’s data carriers with information stored on them pass to the heirs in their entirety. Now, however, the question arises as to the value of the inherited data, whether this value is to be credited to the inheritance and which heir receives it. If nothing has been ordered in the dispositions of death (testament or inheritance contract) and the heirs cannot agree, the authority decides on the alienation or the assignment with or without imputation. In doing so, it takes into account the local custom and, if applicable, the personal circumstances of the heirs.
What about stored data?
Physical data carriers, however, are considered to be a discontinued model in many respects. In contrast, storing and sharing data in online accounts (on social media or in the ‘cloud’) is becoming increasingly popular. The advantages are obvious: data stored online is available anytime and anywhere, requires no physical space and basically cannot wear out (think of the scratched and therefore unusable CD). However, precisely because they can be accessed at any time and from anywhere, they require special protection. Most internet accounts are therefore encrypted and secured with access data (user name, password and possibly other authentication factors).
What precautions should I take as testator?
Ensure access to your Internet accounts
This already indicates the most important prerequisite for the settlement of the digital estate with regard to internet accounts: in order for the legal successors to be able to exercise their rights from the digital estate, they need access to the data contained therein.
It is not self-evident that the rights to the digital estate pass effectively and enforceably against the (often foreign-based) service providers upon inheritance. The enforcement of a possible right of access by the heirs through legal action can be time-consuming and costly and should therefore be avoided if possible. Also, in many cases it is not clear whether this is possible at all. Depending on the factual and legal situation, the secrecy of telecommunications or the post-mortem protection of personality may stand in the way of access. Nevertheless, individual service providers offer solutions such as an ‘Account Activity Manager’, with which users can define settings for death during their lifetime. For example, you can designate people who will have access to your accountafter a latency period. Or you can set it so that the account is automatically deleted after a certain period of time.
Make arrangements in the testamentary disposition
However, not all Internet accounts have the option of setting such preferences. Therefore, it is advisable to think about the digital inheritance just as with the ‘classic’ inheritance and to make appropriate arrangements. As already mentioned, it is possible to assign a claim to individual components of the digital estate to individual heirs or legatees by means of a disposition upon death. They can then assert this right in the inheritance against the co-heirs. However, since it is often unclear whether the right to the data also exists vis-à-vis the internet service providers, the access data itself should also be handed over to the entitled persons. This way, they can log into the internet accounts without having to make an elaborate request to the service providers beforehand. Different variants are conceivable for depositing the access data:
On the one hand, it is possible to physically write down access data on paperand keep it in a secure place, such as a safe deposit box or safe. Secure storage is important to prevent unauthorised persons from obtaining and misusing usernames and passwords during their lifetime. At the same time, you should make a note in the will about the whereabouts and the entitlement to the access data, so that these can also be reliably brought to your attention and found.
Securely store access data
Another option is to deposit access data digitally and encrypted with service providerswho take care of the processing in case of death. However, despite the strict regulations of the new data protection law, there is a certain security risk when you pass on such confidential data to third parties. However, you can improve the security of your access data by dividing them among several custodians, e.g. by storing user names somewhere other than associated passwords. When separating the data, they should name the platform to which they belong. Only those who later identify themselves to all custodians as authorised can then reunite and use the data. Of course, you can also combine physical and digital deposit. For example, by storing the user names online, but keeping the passwords in the bank safe deposit box.
Can I make instructions about my digital estate?
Many people have specific ideas about what should happen to their internet accounts and online presence after they pass away. For example, a final entry could be requested as a farewell or the deletion of certain files. They can work in various ways to ensure that such wishes are realised.
One possibility is to attach terms or conditionsto the dispositions relating to the digital estate. The condition gives anyone with an interest an enforceable right to implementation. The effect of the condition is that a beneficiary only receives his or her rights to the estate if he or she complies with the testator’s order. Two brief examples to illustrate how one might find them in a will:
‘My daughter is to be given access to my Facebook account on condition that she replies to the latest messages and then deletes the account.’
‘My nephew is to receive my bitcoin wallet on condition that he undertakes to donate half of its value to charity at the time of my death.’
An alternative to conditions is the appointment of an executor. Their legal task is to administer the estate and to settle the debts of the inheritance. However, you can also give them other orders, such as the deletion or deactivation of internet accounts, or the termination of current contracts with online service providers.
Depending on your personal situation, the variants listed are suitable to varying degrees for handling your digital estate. We would be happy to advise you personally on further solutions and alternatives at support@deinadieu.ch.