Inheritance law: The digital estate

Digital technology has long been a topic of discussion for most people. Accordingly, deceased persons are increasingly leaving an estate in digital form. For surviving relatives, it is almost impossible to track down the data of a deceased person on the internet and gain access to his or her digital estate. For this reason, everyone should take precautions regarding their digital estate during their lifetime. The following article provides an overview of the necessary and sensible measures:

| Judith Hubatka

Why are rules needed for the digital estate?

Digital technologies have long since found their way into most people’s professional and personal sphere; indeed, they have become almost indispensable in many areas. Accordingly, deceased persons are increasingly leaving a digital estate in addition to the classic estate goods (real estate, securities, cash, personal writings and photographs, etc.). Both in the private sphere (writings, photographs) and in terms of value (cryptocurrencies and other cryptographic tokens), in recent times the importance of these digital possessions in relation to a person’s entire estate has been increasing rapidly.

The digital estate can be significant not only from an inheritance law perspective, but also in terms of personal rights, data protection or copyright. It is practically impossible for surviving relatives to track down the data of a deceased person on the web, to find out passwords or otherwise gain access to the digital estate. In all likelihood, it is not usually known on which platforms the deceased was active. To make matters worse, providers of digital platforms often deny the bereaved access to data or only delete data upon presentation of official documents (certificate of inheritance, etc.). These processes are time-consuming, not least because the providers are often based abroad.

A deceased person often leaves behind online contracts and subscriptions (namely with cloud services such as DropBox, but also with entertainment networks such as Netflix, Spotify, etc.). As a rule, these do not end automatically with the death of the subscriber and must therefore be terminated.

If you do not leave information about your digital assets, they can be lost forever. Profiles and photos can still be found on the internet years after your death without your heirs being able to do anything about it. If you leave behind inaccessible cryptocurrencies, your heirs may also lose access to an essential part of the inheritance from a financial point of view.

It is therefore easiest if you do not only think about your digital estate during your lifetime, but also make appropriate arrangements (even if only in terms of documentation) as part of your estate planning.

What does a digital estate consist of?

A digital estate consists of all the digital assets of the deceased. This includes all data stored in digital form, i.e. data stored on PCs, USB sticks, computers, servers or in the cloud, data at email and homepage providers, other online service providers such as banks but also online payment services such as TWINT, PayPal, etc. as well as data on social networks. Cryptocurrencies (Bitcoins, Ether, etc.) also form part of the digital estate.

What does Swiss (inheritance) law say?

Today’s Swiss inheritance law (which is currently being revised in various parts, cf. Inheritance Law: Swiss Federal Council proposes changes to facilitate the succession of enterprises) dates from 1912 and accordingly does not comment on the digital estate. According to the principle of universal succession applicable in Swiss inheritance law, the inheritance as a whole, i.e. including the digital estate, is transferred to the heirs. Digital data stored on a local data carrier (computer, server, USB stick) fall together with all other assets into the estate without further ado.

It is more problematic with regard to data that is not stored locally but rather online (such as email accounts, data in clouds and profiles in social networks) or decentralized networks. Apart from cryptocurrencies and other cryptographic tokens that represent a financial value, these are often not assets in the sense of inheritance law; accordingly, their transfer is not uniformly regulated by law. Insofar as personal interests are involved, which is likely to be the case most of the time, it should be noted that these are not inheritable, i.e. they do not pass to the heirs (Art. 31 para. 1 CC). In some cases, provisions can also be found in the terms of use of online service providers. However, the event of death is often not or insufficiently regulated or comprehensive access is not granted.

Thus, the bereaved only have limited options for action and it is therefore advisable from a legal point of view to also make arrangements for the digital estate during one’s lifetime.

What do the bereaved have to take care of after death?

When a user of digital media dies, the heirs should (be able to) at least take the following steps:

  1. ascertain the scope of the digital estate – one should get an overview of the online activities of the deceased

  2. verify the (main) email address(es) of the deceased

  3. transfer the digital estate, especially if of financial and/or personal/intangible value, to the (legal/appointed) heirs/ legatees

  4. payment of invoice(s) in connection with online services (subscriptions but also homepage providers etc.)

  5. termination of (fee-based) contracts with online providers on the next possible termination date (if they are otherwise automatically renewed, which should be the rule) (Attention: these costs also fall to the estate and must be paid by the heirs!)

  6. deletion of social media profiles (such as LinkedIn, Twitter, Facebook, Instagram, Tiktok etc.) and other online user accounts (e.g. mail order companies such as Zalando) or putting them into memorial status (Facebook).

In order to make it easier for the heirs to handle the estate or these tasks, the testator should make some arrangements during his/her lifetime.

What arrangements can or should be made before death?

Management of digital assets

It is indispensable for all precautions regarding the digital estate that the testator him/herself always has an overview of his/his online activities. Probably the most critical component regarding access to the digital estate is the deceased’s email account(s), not least because it can also be used to reset passwords with other online providers. This makes it easier to cancel subscribers and delete accounts.

Keeping a list (physical or e.g. on a password-protected USB stick or online) of all relevant user accounts is the most obvious and probably the most practical option. For security reasons, however, specialized services should be used that only store and encrypt the data locally. It should be ensured that this list contains all relevant data, i.e. in particular login/access data such as username, registered email/s, passwords, supplementary password questions incl. all access data to computers, tablets and smartphones. With regard to cryptocurrencies, all online accounts and cryptocurrencies and all passwords, PINs and/or private keys for all wallets (digital wallets), respectively, must be listed. In the event that a password does not work, the mobile wallet or the hardware device is lost, the backup seed phrase can also be written down. Subscriptions, at the very least those for which a subscription fee is charged, must also be included on this list.

It is also important to ensure that this list is kept up to date at all times. To avoid having to update the list every time a password is changed, a password manager can be used. Such software allow the user to only keep track of the master password or to enter it into the list (all other passwords are stored into the password manager).

The list should be deposited in a safe place, possibly together with the last will (contract of inheritance, testament) and the advance directive. A trusted person should be made aware of this; the list can also be handed over to this person with instructions to make it known to the heirs together with the content of the last will (see below). Depending on the value of the digital estate or other circumstances (e.g. disagreement between heirs resp. the heirs should not have access to the data) – it may be advisable to appoint a (digital) executor to handle and distribute the digital estate (based on instructions laid down by the deceased). This appointment requires the form of a last will (i.e. handwritten with date and signature, or publicly notarized, see below). Since the list presumably not only has to be constantly updated, but may also contain sensitive information, it should not be included within the last will itself. In the event of death, the last will is disclosed to all heirs who often have conflicting interests – this may not be in the interests of the deceased. Incidentally, there are also digital preservation services. This offers, among other things, the possibility that a beneficiary “inherits” the access data for the email account after death. Certain providers also offer solutions in the event of the death of the account holder (cf. e.g. Google’s inactivity manager).

In addition, profiles and accounts that are no longer in use must be deleted.

Last Wills and estate planning

Arrangements regarding digital assets should be made irrespective of whether plans are made regarding the division of (physical and digital) assets (testament, contract of inheritance). Otherwise, the bereaved are certain to get lost in an unmanageable jungle of data relating to the deceased.

If an advance directive exists or if there are plans to prepare one, one must also consider whether arrangements regarding digital assets shall apply in such a case. If so, the assigned person will need to be granted access to the list.

Unless specific instructions are made with respect to the digital estate, the deceased’s general last will and testament apply with respect to the division of the estate (i.e. the distribution of the deceased’s property). These must be in the form of a fully handwritten, dated (year, month and day) and signed by the testator’s own hand or publicly notarized last will or publicly notarized contract of inheritance. In the absence of a last will and testament, the law applies.

However, due to the unclear legal situation as mentioned above, it is advisable to additionally make specific provisions – instructions or wishes – for the digital estate or, in particular, the digital data, i.e. what is to happen to the digital data and who is to take care of it. For example, it should be specified which data (on the internet but also on one’s own devices) is to be deleted or whether a social media profile is to be set to a memorial state (Facebook). It is also important to consider documents (correspondence or photos) that are to be sent to a specific person. Depending on the nature of the same, these should be drawn up in writing or in the form of a last will (see above) and kept in a suitable place, together with the list and the last will and/or inheritance contract.

If you have any further questions, please do not hesitate to contact us. We will also support you in designing a solution tailored to your specific situation and needs.

Judith Hubatka
Attorney at Law, Notary Public
[email protected]

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