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Digital inheritance

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Digital inheritance is the process of handing over (personal) digital assets to (human) beneficiaries.

History

The Roman law introduced the concept of universal succession, which means that e.g. in inheritance law the heirs enter into the legal position regarding property rights (includes duties and rights) of the testator by law.[1]

Unique Characteristics of Digital Assets

Digital assets are (in contrast to physical assets) more dynamic in appearance and fugacity. Data sets that can be inherited can include passwords, instructive memos, digital contracts, digital receipts, pictures, medical information (e.g. about inheritable diseases). Today, more and more values are resting on media that are not owned by the data owner but by service provider (e.g. Google, Apple, Microsoft, Salesforce, etc). Also in contrast to physical values, electronic values can be copied indefinitely, which maybe problematic if the asset represents intellectual properties. On the other hand it poses a challenge for many data heirs to receive or to create copies for all interestees when they have limited IT skills themselves. A further challenge comes with the extreme proliferation of digital data. 5-10 Gigabytes new digital assets per year per family (if one takes digital pictures into account), is rather common. Data heirs that are faced with an un-sorted data flood are often unable to separate the nice-to-have assets from crucial and core assets. Yet another problem is posed by the fact that contracts with service providers most often are automatically terminated (by the terms of service) as soon as the customer seizes to exist. Meaning that there is no right for the heirs to access that data.[2]

Handing over Digital Assets

In contrast to conventional inheritance of physical assets, digital inheritance also needs to cope with the fact that the digital heirs may only be known by their email addresses or mobile numbers. Handing over digital assets requires additional instructions that maybe crucial for a heir to further treat the digital assets.

Application

Digital Inheritance should be setup wherever important data needs to be handed-over in case of an event that renders the owner incapable of caring for those assets. The data owner hence has an interest to list (or centrally store) his/her assets and decide who will need which data. The data owner will also need to specify the circumstances under which the data shall be handed over to heirs (generally this is simply the death of the owner) but it can be difficult and extremely annoying to proof the death in an international setup where heirs, data sources and last residence of the owner are internationally spread. The data owner will also need to have a way for secure and guaranteed notifications of data heirs even if they are only reachable via electronic channels.

Other applications can be to simply document the digital essence of a person, meaning to fulfill one of the oldest and deepest human wishes, to leave traces and become remembered.

From a legal point of view, digital inheritance requires that digital data takes part of the descendant’s estate. As mentioned at the beginning, the concept of universal succession means, that heirs enter into the legal position regarding property rights of the testator by law. Such property rights as elements of the descendant’s estate are – under several national laws, e.g. in Switzerland[3] so called subjective rights (like outstanding debits, property, intellectual property rights and others) as well as possession-based rights of the testator.

Digital data can constitute subjective rights (e.g. copy right regarding a manuscript of the testator). However, the majority of digital data won’t be a subjective property right (e.g. passwords, personal images or notes). In order that such data falls into the descendant’s estate, the testator must have possessed these data. Possession again is usually related to objects, which leads to the question, if digital data are objects in the legal sense. Today, it is commonly assumed that digital data does not comply with basic characteristics of objects such as physicalness.

As far as digital data is saved on a data medium of the testator, such digital data is adducted by the possession of the medium as an objective. Of course this is not the case if the testator has transferred his digital data to a service provider to archive it on his server. In such a case, it is crucial, that the testator has had access to the digital data e.g. online with a password. In such a case the password – analog a key for the good old save box – is an aid for access, which creates possession in a legal sense. Then the access to the digital data (and aligned with this the notice of the data) falls into the descendants’s estate. It is currently assumed that there’s no reason why e.g. photographs in a photo album should be treated differently than photos archivated as digital data. As a result it can be declared, that digital data, archivated on a medium of the service provider, falls into the descendant’s estate, as far as the testator has had access and the digital data isn’t cleared with the testators death.

If the testator doesn’t want the ordinary inheritance of his digital data to all of his heirs, but instead wants to pass it exclusively to one or more specific persons (heirs or other persons), he has to make certain dispositions in his lifetime. Of course, if he is the only one who knows about the digital data, he can pass the access keys to his assignee and all the other heirs won’t know about it. Different national law representatives do not agree whether the testator can by means of testamentary disposition assure, that only the assignee does notice of his digital data. The problem here is, that with the opening of the will at the latest, the other heirs should get knowledge of the existence of digital data and will be authorized (under many national laws, e.g. in Switzerland[4]) to get to know the digital data based on their information right as heirs. Not even a declared will of confidentiality of the testator is preferential to the information right of the heirs. This is understandable in a way, as it protects the minimum legal portion of each heir if the digital data has monetary value. All the same the testator can partially assure that his will is going to be respected by downgrading those who do not respect his declared confidentiality will to the minimum legal portion.

Limitations and alternatives

In absence of solutions that can provide the above application the probably simplest approach to digital inheritance is to create regularly a backup of the most important assets and deposit it offsite (e.g. a bank vault) and consequently determine a single person (lawyer, partner, children) that will post-mortem distribute the data. This should also include a list of passwords to online (and local) accounts. Obvious challenges are here in the area of security, data readability (are there still readers for the media, are there still programs for the files) and manageability (uptodateness of the backup as well as assignments to heirs).

See also

References

  1. ^ http://www.rechtslexikon-online.de/Universalsukzession.html
  2. ^ http://home.tiscalinet.ch/ugobechini/password_morto.pdf
  3. ^ http://www.admin.ch/ch/d/sr/c210.html
  4. ^ http://www.admin.ch/ch/d/sr/c210.html
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