Digital Assets and Probate: A Practitioner’s Guide

James Normington is a chancery and commercial barrister at New Park Court Chambers. He has a particular expertise in wills and probate matters with a digital aspect

PART 1- GLOSSARY
PART 2 -GENERAL CONSIDERATIONS
1DEFINING DIGITAL ASSETS
1.1What are digital assets (financial and non-financial)?
1.2What are quasi-digital assets?
1.3Digital pathways – defining the lines
1.4Summary – digital assets and quasi-digital assets
1.5Commonly held digital assets
1.6Commonly held quasi-digital assets
PART 3 - PRE-DEATH ISSUES
2CONSIDERATIONS WHEN ADVISING THE TESTATOR
2.1Memorandum of wishes, also known as a letter of wishes
2.2Amazon – considerations to be made by account holders in advance
2.3Google
2.4Creating a letter of wishes with digital assets, particularly social media, in mind
2.5Advising the client in relation to social media
2.6What are the social media options?
2.7Pre-death considerations for crypto-currencies
3A CLIENT QUESTIONNAIRE – WHAT ONE MIGHT LOOK LIKE AND HOW TO USE IT
3.1The introduction
3.2How to format the client questionnaire
3.3Which categories to include in the client questionnaire?
3.4Documents (such as PowerPoint presentations, Word and PDF documents, and spreadsheets)
4DRAFTING MATTERS AND SAMPLE WILL CLAUSES
4.1Draft clauses for last will and testament
4.2Appointing a digital executor or digital manager
4.3Instructions from beyond the grave
4.4Draft clauses to dispose of digital rights and
interests
4.5Powers of attorney
4.6Memorandum of wishes, also known as a letter
of wishes
4.7Letter of wishes and social media
5STRATEGIES FOR DIGITAL MATTERS ON DEATH – CONSIDERING RISKS AND MITIGATION
5.1The inactive approach to digital assets (aka doing nothing)
5.2The active approach to digital assets (aka doing something)
5.3Personal representatives’ and/or executors’ and trustees’ role
6ADVISING THE PERSONAL REPRESENTATIVES AND/OR EXECUTORS AND/OR BENEFICIARIES
6.1Distribution matters – non-financial issues
6.2The role of the digital executor or digital manager
6.3Is a digital manager necessary?
6.4Secure, capture, electronically scrub and cleanse devices and hard drives
6.5Rights associated with files such as digital photographs and personal videos
6.6What to do with files such as digital photographs and personal videos
6.7Digital documents – What are they and what to do with them?
6.8Digital legal documents
6.9Dealing with blogs
6.10Distribution matters – financial issues
6.11Online bank accounts, etc
6.12National Savings and Investments Accounts (Premium Bonds, etc)
6.13Gambling and Lottery accounts
6.14Online gaming accounts
6.15Online trading, buying or selling accounts
7SECURING THE PHYSICAL ASPECTS OF THE DIGITAL ESTATE
7.1Securing hardware and devices
7.2Information capture, cleansing and storage
PART 4 -POST-DEATH ISSUES
8DEALING WITH FINANCIAL QUASI-DIGITAL ASSETS POST-DEATH
8.1Dealing with online bank and financial institution accounts
8.2Strategies for tracing online financial assets
8.3Looking for the digital footprint behaviour pattern
8.4Security concerns and how to handle them
9AN INTRODUCTION TO CRYPTO-CURRENCIES
9.1What is crypto-currency?
9.2What is crypto-currency used for?
9.3How is crypto-currency stored?
9.4How does crypto-currency work?
9.5Crypto-currency – altcoins and stable coins
9.6Facebook and crypto-currency
10DEALING WITH SOCIAL MEDIA
10.1Why is it important to understand the options and act accordingly?
10.2Deleting social media accounts
10.3Maintaining or retaining the deceased data in social media accounts
10.4Instagram
10.5Pinterest
10.6Facebook (including Facebook Messenger)
10.7LinkedIn
10.8Snapchat
10.9WhatsApp
10.10Twitter
10.11Dating websites
11MITIGATING THE RISKS TO THE SOLICITOR AND/OR LEGAL REPRESENTATIVES
12THE PROFESSIONAL EXECUTOR AND LEGAL REPRESENTATIVE AND VALUING THE DIGITAL ESTATE
12.1Account balances
12.2Vintage devices
12.3Hardware devices
12.4Valuing crypto-currencies and non-fungible tokens
12.5How to account for digital assets when completing form IHT400
13CRYPTO-CURRENCIES – TAXING MATTERS
13.1Value Added Tax
13.2Income tax
13.3Capital gains tax
13.4Inheritance tax
13.5Valuing crypto-currencies for tax purposes
13.6Pooling and the importance of fungibility

APPENDICES
A1Useful Draft Clauses when Dealing with or Appointing a Digital Executor or Digital Administrator
A2An Example of a Client Questionnaire
A3An Example of a Letter of Wishes