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Google has recently added a new feature to its settings options which allows a user to decide how personal data stored on Google services is dealt with after their death. The options include having a nominated 'beneficiary' to receive all of the stored data or an automatic deletion of all accounts and the related data after a set period of inactivity.

In today's increasingly digital world, some of our most significant data is stored online and is instantly accessible at the click of a smart-phone button. Facebook currently has over a billion active members; LinkedIn two hundred million; Twitter five hundred million and Instagram a hundred million; these sites between them hold a substantial amount of personal information. The majority of us have personal e-mail accounts and an increasing number of people store their photos on online storage sites. Some online applications have data that has been paid for by the user; Bruce Willis recently considered legal action against Apple over the right to pass on his i-tunes account to his children after his death.

Nearly all online applications require a password to access and control the data stored on them. But how many of us think about what we would want to happen to that data after we have gone. Would you be happy for a family member to have access to your personal e-mail accounts? Would you be concerned by the thought of your loved ones being unable to access your photographs due to privacy restrictions? How many of us store information online that would be required by Executors administering an estate (for example, information about insurance policies and bank accounts) that would be inaccessible without the relevant password(s).

We can all plan the passing on of our more traditional assets after our death; we write a Will, choose Executors and beneficiaries and (hopefully) keep that Will under regular review. It is now also important to consider online assets as part of an estate planning exercise.

However, accessing online data after death raises difficult questions about legal ownership, privacy laws and jurisdictional differences.

The more popular online applications, such as Google, have begun to introduce measures to deal with the death of a member. Facebook, for example, gives the option for a deceased member's page to be memorialised, allowing messages to be left on the page but freezing some of the less appropriate functions. They will consider deleting an account on the request of a 'verified immediate family member' if documentation can be produced to their satisfaction. However, some applications do not yet have such functionality and others simply refuse, for data protection reasons, to release passwords, meaning information cannot be accessed.

The law itself is only just beginning to deal with this and it is likely that this legal development will be complex; an online world is one without traditional geographical boundaries, which inevitably means it will take longer for laws to develop in a concise way.

Before the law catches up, there are certainly businesses out there that have spotted and are attempting to deal with this issue. Legacy Locker, for example, allows users to store all of their personal passwords in, ironically, a secure online environment and to nominate a beneficiary who will be given access to those passwords on the user's death or incapacity; a user can have different beneficiaries for different accounts.

In the future, it may be that we all need to name a 'digital beneficiary' in our Wills who will have control of our online identity. However, in the meantime, considering our digital legacy and the impact of our increasingly online world on our loved ones is something we should be routinely considering alongside questions over who should receive the family silver. As is the case for traditional estate planning, considering these issues while you are around will inevitably ease the strain on those who are left behind.

We’re always happy to discuss things further.
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