Do you ever find it hard to remember a password for an account you have? Now try and think about your executor gaining access to your digital accounts if you were to die. It can be tricky enough for your dedicated executor to navigate the division of your physical and financial assets without the added stress of access to your digital accounts.

It is a very contentious subject due to evolving laws in Australia trying to adapt to deal with ownership and transfer of digital information. Although it is a legal obligation on executors and administrators to identify, call-in and distribute a deceased person’s assets under the Probate and Administration Act 1898 (NSW), there are added complexities due to the third-party services own set of terms.

Each online platform generally has their own set of terms of service agreements when it comes to establishing a digital account which then determines who may access an account following the user’s death or incapacity. Often this results in restricted access to the user’s account to only the user themselves or other person they have nominated in the event of their demise if that option was available to them. This is generally mandated by the customer agreement the user agreed to when signing up or accessing the service.

It is further complicated by the fact that although a person may include in their estate planning documents what is to happen with their digital assets when they die, complications arise as to whether those digital assets are in fact owned by the testator.

In NSW there is currently no specific law that directly addresses access to the digital records and assets of a person after their death meaning there is no direct account or direction for what happens to a person’s digital possessions after they die or are incapacitated.

In some cases where a digital account is not properly dealt with after someone dies, consequences can include ID theft, spamming of accounts, fraud, and reputational damage of the deceased person. In cases with social media, it can cause further emotional distress if an account was to be accessed by a spammer allowing them to post on behalf of a deceased person.

There are ways you can assist in helping your executor track down your assets and contact relevant service providers.

One way is by keeping an up-to-date list of your digital assets. This may include all your online accounts, subscriptions, and services you are affiliated with including subscriptions such as Netflix, Uber, Spotify and more. You might also consider whether you want to include a list of your passwords.

In this case though, you would need to consider how to keep this list safe and secure for your privacy. You may consider having this in a sealed envelope with your original Will held by your solicitor or in a bank safe deposit box.

*Please note – the information in this article relates to the law in New South Wales and is general information only. It should not be construed as legal advice.