What can I do to protect my digital files after death?

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I’ve read about the worrying rising trend of “ghostbots”, where unscrupulous people mine data from Facebook and other social media content of the deceased and use their voices on their own posts and TikToks. Is there anything I can do to stop this happening after I die?

Jessica Jamieson, a partner in Cripps private wealth team, says it is certainly a concern that our digital footprints, in whatever form, could be repurposed or misused to create so-called ghostbots — like many issues that have arisen as a result of fast-moving technology, the law can be slow to catch up. 

There is no existing law that specifically addresses the protection of digital assets on death. While the UK’s General Data Protection Regulation and the Data Protection Act 2018 govern personal data rights in relation to the access and deletion of digital photographs and recordings, they only apply to living people and don’t protect a deceased person’s data. 

Copyright law safeguards original creative works such as digital images and recordings. On death, the copyrighted media ownership is transmitted to the creator’s beneficiaries and any unauthorised use may constitute copyright infringement. Social media users often grant platforms licences to use and display their content as outlined in their terms and conditions, so review these carefully. 

Executors’ statutory rights and responsibilities are also important. Unlike friends and family, they have a legal right to access and manage a deceased person’s digital content. Accessing or attempting to access a person’s devices and online platforms without due authority is a criminal offence under the Computer Misuse Act 1990 and so a grant of probate is often required by online service providers to allow executors to do this. 

Conscious of the considerable legislative gaps in this area, the Law Commission has just published its final report setting out its recommendations on changes to the law to ensure it better recognises and protects digital assets.

In the meantime, and in light of the recent ghostbotting trend, “do not bot me” clauses in wills have emerged in an attempt actively to protect digital assets on death. You can also take a number of other practical steps to assist those left behind to manage your digital assets.

For instance, compiling a comprehensive list of digital assets, including where they are stored, login credentials and passwords can be a really helpful way to ensure your loved ones have access to accounts. Most terms and conditions prohibit disclosure of such information to third parties during their lifetime, so details should be kept securely (look at password managers or digital legacy services) with instructions on how executors can access them on death. 

All modern wills should also contain express powers giving executors the right to deal with your digital assets flexibly. You can also leave specific instructions on the management, storage or deletion of digital assets, including privacy concerns, sentimental value and any desired ongoing use. You could also designate a tech-savvy individual as your “digital executor”, to specifically manage your digital assets. 

Finally, it’s worth considering the specific terms of the platforms that you use most, as many have unique policies governing users’ digital content on death. For example, Facebook allows users to specify whether their profile should be deleted, or a “legacy contact” appointed to continue managing it. 

Should we put in legal agreements over a jointly owned property?

Instead of moving into assisted living, we decided my mother should move into an annexe built in our garden. She is selling her home to help fund the build and we’re paying for the rest. However, I am aware that the finances are getting a bit messy. Should we put in some legal agreements to ensure that when the time comes to sell our property, it’s completely clear how the money is divided between us and my mother?

David Cobern, director at The Family Law Company, says that as you are the legal owners of the property, you may not want your mother to join you on the legal title. At the moment, although she has invested money she has no legal rights to the property unless you decide to enter into a legal agreement with her. 

Regarding your current position and putting an agreement in place, you actually don’t need to worry about accounting for every penny. However, it would be sensible to sit down together now, agree in broad terms and record in writing who has paid for what so far, how much it will cost to complete the build, and who will be paying those costs.

You could then enter a declaration of trust between you both (the first party), and your mother (the second party) which records your mother’s interest in the property. It could take the form of a percentage of the value of the property, or a fixed figure as invested by your mother. Either option is acceptable, but a percentage takes account of future increases in value whereas a fixed figure does not.

It’s worth bearing in mind that if your mother has assets over the inheritance tax threshold, which is currently £325,000 for an individual, she may not want an interest as this will be taxed on her death, possibly at 40 per cent. If the value of her estate is over the threshold, she may prefer to gift her interest in the property to you, in essence giving it away rather than paying the tax after death.

However secure you feel as a couple at this juncture, you should consider what will happen if you decide to get divorced or dissolve a civil partnership. If there is no legal agreement in place at the time, your mother’s position will not be protected, and she may be forced to apply as a third party claiming a share in the disputed home. This will add extra stress to what would be a difficult situation for you and will also place your mother in an awkward position. A written agreement would significantly reduce the areas of dispute. 

All in all, putting a legal agreement in place now will avoid future disputes about shares in the property and what the intentions are. 

The opinions in this column are intended for general information purposes only and should not be used as a substitute for professional advice. The Financial Times Ltd and the authors are not responsible for any direct or indirect result arising from any reliance placed on replies, including any loss, and exclude liability to the full extent.

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