Digital Death: What Happens to Digital Property Upon an Individual's Death

Digital Death: What Happens to Digital Property Upon an Individual's Death

Marita Shelly (RMIT University, Australia)
DOI: 10.4018/978-1-7998-3130-3.ch002
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An increasing use of social media platforms and other mobile applications (apps) has led to the creation, purchase, storage, and use of online information and data including personal or financial information, email communications, photographs, or videos. The purposes of this chapter are to discuss digital property and to determine whether under estate planning and administration law digital property can be inherited like other real and personal property. This chapter will examine relevant legislation in Australia, United States (US), and other jurisdictions including Canada, as well as legal cases that have discussed the issue of accessing or transferring digital property held by service providers such as Facebook. It will also discuss examples of service providers' terms of use and whether these terms allow for digital property to be accessed by a third party. It will conclude with recommendations about how an individual can manage their digital property as part of their will or estate.
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Definition Of Property

Often the term ‘property’ refers to a thing that belongs to an individual or entity but as noted by the High Court of Australia (Yanner v Eaton, 1999, pp. 365-366):

Key Terms in this Chapter

Digital Asset Management Plan: Is a document that lists an individual’s online accounts and other digital property and provides instructions on how their digital property is to be managed as part of their estate.

Electronic or Informal Will: Traditionally wills are in written form, signed and witnessed. However, courts have started to accept documents or written words saved on computers or other devices that indicate the document or written words are an individual’s will.

Legacy Policy: Instructions provided to a service provider from user about how their account is to be managed following an inactive period or the user’s death.

Digital Will: Is not a legal document, rather it a list of the online accounts (including email address or username) that an individual has registered.

Digital Asset: A type of digital property that has financial or sentimental value.

Digital Property: An electronic version of information or data including images, text, multimedia information, or personal property stored on the internet, a computer or on another electronic device.

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