As our lives become more digital with social media, internet banking, online working, cryptocurrency, eBooks, the metaverse, digital art and NFTs, we inevitably need to consider digital assets when dealing with estate planning and succession.
Singapore is seen as leading the way in recognising digital assets in the mainstream financial world. However, we have no specific laws yet dealing with digital assets and wills.
Traditionally, people will include houses, vehicles, bank accounts, share portfolios, investments, jewellery, and other assets with monetary value in their wills. Occasionally, people also include sentimental items in their wills.
As more people enter the digital asset market, they are considering including digital assets, such as cryptocurrencies and NFTs, in their wills. But have you considered photos, social media accounts, online working forums, etc?
Digital asset estate planning
Your digital estate refers to all the assets that you have in digital form. Digital estate planning helps your loved ones to settle your digital persona and presence after your death, and deal with digital assets of value.
When we look at Statista, they expect that the number of digital asset users in Singapore will reach 2,042k by 2027, with user penetration expected to increase from 25,7% in 2023 to 33.2% by 2027. With this increase in users, it makes sense that we should consider how to deal with our digital assets after our death.
By drawing up a digital estate plan and including it in your will, you are protecting your online assets from risks such as identity theft, hacking, fraud, etc., and ensuring it ends up with the right people after your death.
If you don’t specifically include your digital assets in your will, they will be dealt with as part of your residuary estate and go to whoever inherits that in your will. If you die without a will, it will go to whoever is entitled to it under intestate succession.
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What are your digital assets?
Currently, there is no legal definition of “digital assets” in Singapore. Digital assets include anything in digital format, for example:
- Online accounts, e.g., online gaming, remote working platforms, PayPal, etc.
- Photos, videos
- eBooks and documents
- Social media accounts
- Music files
- Digital art
- Emails
- Cryptocurrencies
- Non-fungible tokens (NFTs)
- Loyalty programmes, e.g., frequent flyer miles, banking awards, etc.
As we can see, some digital assets only have sentimental value, but others may be worth significant amounts of money. Whether sentimental or worth millions, do you want to risk it going to the “wrong” person after your death? Or even worse, to remain unclaimed in the digital world?
The general rule is that an asset can be included in a will or intestate succession if the asset is legally classified as “property”. The legal position surrounding digital assets, however, can be complicated. And not all digital “assets” have monetary value or are owned by you.
Are digital assets “property”?
Until recently, whether cryptocurrency and NFTs qualify as “property” you can include in your will in Singapore was uncertain. However, in CLM v CLN and others [2022] SGHC 46, the Singapore High Court expressly stated, “Having considered the extant case law and especially the analysis in Ruscoe (Ruscoe v Cryptopia Ltd (in liq) [2020] 2 NZLR 809), I was of the view that cryptocurrencies satisfied the definition of a property right in Ainsworth.”
In Ainsworth, the court defined “property” as, “It must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability.”
The court held that crypto was property and could be subject to a proprietary injunction.
In Janesh s/o Rajkumar v Unknown Person (‘CHEFPIERRE’), [2022] SGHC 264, the High Court came to the same conclusion and held that non-fungible tokens are “property”.
The Singapore Family Court also accepts that digital assets form part of matrimonial assets that can be divided. Although it was never disputed, in UTL v UTM, [2019] SGHCF 10, the Family Division of the High Court held that a Bitcoin holding could be divided as a matrimonial asset.
Although recent case law established that crypto and tokens can be included in your will, there are many practical concerns about how this will work. Unlike assets in bank accounts and investments, cryptocurrency and digital tokens are not easily accessible by personal administrators.
Cryptocurrency is held in crypto ‘wallets’, and without the necessary information, your beneficiaries cannot access it.
How should you deal with crypto in your will?
You need to specifically list your cryptocurrencies and leave step-by-step instructions on how to access your digital wallet. Crypto has a very small paper trail, and your beneficiary may never find it if you don’t specifically mention it.
Typically, crypto wallets are protected by crypto keys. Tokens can also be stored in brokerage-type accounts. To gain access, your administrator will need specific information to access the assets. They might need login passwords, encryption keys, plus public and private crypto keys to unlock your digital wallet.
One of the challenges dealing with your digital property in your will is privacy and security. Your will becomes public record upon your death. You should consider setting out passwords, login details, crypto keys, etc., in a separate document to prevent the wrong people from gaining access to your digital assets and accounts. You could even appoint someone specific to be your digital executor. This could be a tech-savvy person you trust with knowledge of digital asset management.
You should also consider including access devices, such as smartphones, computers, flash drives, etc., through which your beneficiaries or executor can access online accounts, etc.
What about sentimental digital assets?
Not all your digital assets have monetary value. Although some can be monetised, many are purely sentimental. Yes, a photo on Instagram or Facebook could have monetary value, especially if you are an influencer, but a significant percentage of social media and other digital assets only have legacy or sentimental value. Since many social media accounts do not have a monetary value, it is still unsure if they can be classified as “property”.
Still, you do not want your personal information floating randomly in the cloud after your death. When you die, your online presence remains, and you should consider leaving instructions on what should be done with your social media accounts, photos, personal documents, etc., after your death.
The instructions can be left in a separate letter of wishes.
Do we “own” our social media and online accounts?
We do not own all our digital “assets”. On some platforms, you merely hold the right to access the forum, set up an account, and use the platform on their terms. Ownership depends on the terms of each digital platform. You must determine the terms of each platform you access digitally, understand what your administrator can or can’t do after your death, and leave specific instructions.
Most platforms have some form of online tools that can be used to manage accounts after your death. Some social media platforms, Facebook, for example, provide that loved ones can “memorialise” a deceased account. The same feature is available on Instagram. This prevents others from logging in and “using” your Facebook account.
You might want your account deleted or online documents with personal information destroyed. There may be things that you want to keep a secret from your loved ones.
On Facebook, you can set specific settings yourself to have your account deleted as soon as Facebook is informed of your death. Your account will be permanently erased.
If you have a Gmail account, Google has options for deleting the account. It also has options for dealing with Google photos, documents, contacts, etc.
Your iCloud account is non-transferable, and unless you have a family storage plan, all rights to your Apple ID and content in your account will terminate upon your death.
It can also be confusing when it comes to things like online banking. Although your online bank account can be classified as a digital asset, and your online statements would be, the money in your account is not a digital asset. That would be dealt with in the traditional way. However, you should find out the procedure for dealing with your online profile and all your financial information.
Leaving access codes, usernames, and passwords to someone you trust to access and manage these platforms after your death is critical. You should include a letter of wishes or instructions on what you would like to happen after your death.
Conclusion
Traditionally, your administrator will deal with an asset such as a bank account by getting a grant of probate, producing it to the bank, and then claiming and distributing your money according to your will.
To deal with your digital assets, your administrator must not only be aware of their existence, but they must also know how to access your digital assets and have access to the devices on which you accessed and managed your accounts. Estate planning around digital assets requires a bit more effort than around your traditional assets.
In short, to effectively deal with digital assets, you need to follow these steps:
- Identity and list your digital assets
- Decide if it has monetary or sentimental value
- Specify beneficiaries or leave a letter stating what should happen to your digital assets
- Consider access to your digital assets – leave clear instructions and all the necessary “access tools”
- Consider how you want to leave instructions and to whom
If you haven’t thought about including your digital assets in your will yet, you should seek legal advice as soon as possible to decide how to protect your digital assets and legacy.
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