Technology & Law Comment: What to do about Probate and Digital Legacies?

by Richard Hearne, Thomson Snell & Passmore
Aside from costs, one of the most commonly asked questions for Probate Practitioners is “how long will it take to take to obtain the Grant?” Of course, this is never an easy question to address and there is rarely a simple answer. However, what is generally the case is that the most time-consuming part of the administration process for a Personal Representative is often in simply establishing the assets and liabilities of the deceased. This is the part of the process which can often be the most onerous and upon which everything else depends.
Accordingly, although there is rightly a great focus on encouraging clients to prepare a will, of almost equal importance is to encourage them to record and leave clear information about their assets for the benefit of their Executors or family.
It is within this context that we might view the increasing murmur within the private client industry around so called “digital assets”. Much has been made of the increasing shift to on-line banking, the storage of photographs and video on “clouds” and the creation of “digital existences” on social media sites.
Rightly, there are questions that need to be addressed in respect of those assets. In particular, we should examine the question of access by Executors to online accounts after the death of the owner. Much has been written elsewhere warning that such steps before issue of the Grant may variously mean falling foul of contract law, the Computer Misuse Act 1990 or even Money Laundering regulations. Despite the enormous temptation to access assets using passwords or PINs passed on from the testator, an Executor is still advised not to do so. This leaves us pretty much where we have always been, i.e. that once the account is discovered, an old fashioned letter or phone call to the asset provider with notification of death and a request for instructions about accessing the assets will be needed.
So, for the time being at least, the main impact for practitioners drafting Wills is to ensure that they extend their standard asset questionnaires to encompass any digital assets that may be owned (which may range from financial assets to digital media to family history research, etc). The subsequent questions that arise are; “to whom should those assets pass, and, “how do we make those assets known and accessible to the Executors?”
Clearly alive to these issues, there are now dedicated websites that offer a solution to some of these problems. For example, some provide a space for Testators to list their assets, complete a letter of wishes or provide guidance to appointed guardians. Of course, there also has to be some commercial impetus to these sites and at least one offers the sale of legal services (principally will drafting) and the ability to review and update your will via a portal.
These sites may appear to offer an attractive one-stop solution, but there must be concerns around data security, particularly where so much personal and financial information is stored in one place. In light of recent high-profile hacking cases, is it really possible for anyone to claim total security? Secondly, and to state the obvious, the information ultimately available to a PR would only be as good as that put in, and could potentially be out of date or incomplete. It would not negate the need for all the usual physical checks of property and paperwork. Indeed, it would be impossible for an Executor to say that they had properly discharged their duties by referring to only one source of information. Finally, caution is advised about any legal services sold online, especially where there is little, or no face to face contact with an advisor. One would always question whether in the case of will drafting this is ever an advisable step for all but the most simple of estates.
This is not to say that such sites are not useful. They may present a very valuable, personal and accessible way for a Testator to impart supplemental information. Certainly, Wills and accompanying Letters of Wishes are often drafted in a very formulaic and limited way. Often this conforms more to the limits the draftsman has set rather than being a proper and full expression of what the Testator actually wants to say.
Consequently, one of the great problems with estate administration is that Executors are often left to guess what a Testator might have intended to do with their funeral, or chattels, or how they would like their Trustees to view and treat beneficiaries. The basic legal mechanics are more often than not clearly defined by the Will, but sometimes more is required. Executors often lament that they wish they understood what was “intended” by the deceased and are left to stand uncomfortably in their shoes. Anything that might assist an Executor (or indeed in some cases the Court) to fully understand the intentions of a Testator or supplement the sometimes narrow confines of a Will may indeed prove to be a useful innovation.