Should you have a digital will?

Most of us have a number of social media or other online profiles. A digital will enables you to set out, in one place, your instructions on how you want each of these profiles to be handled after your death.

A digital will is not the same as an ordinary written will, which is a legal document specifying how your assets must be distributed after your death. Wills often contain other instructions, such as funeral and burial arrangements or the appointment of guardians over minor children, but their primary purpose is to regulate the distribution of a deceased’s estate.

South African legislation and courts have not considered whether a social media or other online profile is an “asset” that forms part of your estate and can be left to a beneficiary of a will. Online assets definitely exist, for example, digital artwork and possibly cryptocurrencies like Bitcoin (although the nature of cryptocurrencies has also not yet been tested in South Africa). But, if an online profile is not itself an asset, your instructions regarding it are unlikely to be enforceable as a will in a South African court.

Certain jurisdictions, such as Delaware USA, have passed legislation regulating the access and control of digital assets and digital accounts by the representatives of deceased’s estates (see our previous post). The Delaware law specifically includes social media content as a “digital asset.”

If there is no similar law in your jurisdiction, a digital will might still be useful as a guideline to your next-of-kin as to your wishes about your online presence after your death. You should appoint an “executor” in the same way that you do in an ordinary will –designating the person who carries out your instructions, such as having your accounts deactivated.

Remember that what you state in a digital will is subject to the terms of service of the relevant social media or other online platforms (unless the law in your jurisdiction, like Delaware, states otherwise). For example, if you state that you want your Twitter profile to be memorialised, your executor will not be able to carry out your instruction because Twitter does not offer this option. See our previous post for more information on what some of the platforms offer.

You should consider whether to pass on your login details (usernames and passwords) to the executor of your digital will. The terms of service of the relevant platforms are important here as well. In some cases your login details are required to deactivate accounts (if that is your instruction), while other allow a legacy contact to be appointed without passing on login details. Some platforms will deactivate or memorialise an account on receipt of proof by an immediate family member or executor that the user is deceased.

Digital wills should be updated when you open or close any accounts or change your passwords, or if any platforms change their terms or policies on the accounts of deceased users.

How many online profiles or assets do you have? Do you know what you want to happen to them when you are no longer around? Think about whether you need a digital will to ensure that your instructions are followed.