The Need for Regulation Regarding Digital Estates

As digitalization advances, people today leave behind not only traditional assets but also a wealth of digital content and traces on the internet, in IT systems, and on storage media. Digital estates are not limited to personal data but encompass a wide range of digital assets and accounts. Since settling a digital estate in the event of inheritance often involves legal and practical challenges, it is advisable to establish appropriate arrangements and take precautionary measures during one’s lifetime.

What is meant by digital estate?

The digital estate includes the entire collection of digital data generated by and through the deceased person, regardless of where it is stored, in particular data and content (photos, videos, documents, chat histories, etc.), (user) accounts and access credentials (email accounts, social media accounts, streaming accounts, online shops, etc.), assets (cryptocurrencies, balances with online services such as PayPal, etc.), as well as (usage) rights and contracts (music, films, software, domains, etc.).

Inventorying the digital estate and accessing it

Even the precise inventorying of the digital estate often poses difficulties in practice. Furthermore, the legal and practical access situation for digital storage locations is often less clear than for physical data storage media. Access to user accounts or stored data by surviving relatives may be impossible or significantly impeded due to missing login credentials, technical security measures, and contractual (usage) restrictions imposed by the respective providers. For example, in the case of cryptocurrencies, while legal entitlement may be clear, if the access key is missing, access remains effectively impossible and the assets are effectively lost. The same applies to email accounts, cloud storage, or other online services whose access credentials are unknown to the heirs.

Furthermore, providers are often based abroad and subject their services to foreign law, which can further complicate access to data and accounts or their deletion. This can result in Swiss certificates of inheritance or powers of attorney not being readily accepted, and heirs receiving only limited access—if any—or having to undergo lengthy verification procedures. These hurdles can significantly impede or even render impossible the administration and disposition of the digital estate in the event of inheritance.

Designating estate contacts and trusted individuals

Social networks and digital platforms vary significantly in how they handle the digital estate of deceased users. While some providers offer the option to designate a so-called legacy contact or trusted person during one’s lifetime to manage the user account after death or make certain decisions, other platforms limit themselves to deactivating or deleting the account after a certain period of inactivity.

Setting an Account to Memorial Mode

In some cases, user accounts can be set to memorial mode, so that content remains visible but regular use is no longer possible. Other providers grant relatives or heirs access to specific data or functions under certain conditions, such as upon presentation of a death certificate or proof of inheritance. However, the scope and conditions of such rights vary considerably and are primarily governed by the respective terms of service of the platform operators.

Difficulties in transferring the digital estate to heirs

Finally, the transfer of data from the deceased to the heirs can also pose difficulties. The terms of service of many providers not only restrict post-mortem access but also frequently prohibit the transfer of an account or the data it contains to third parties. Compounding the issue is the fact that, with digital content, a distinction must often be made between ownership and mere rights of use. Many digital services and content are not acquired as property but are merely made available under license or usage agreements. Whether and to what extent such rights are inheritable is often not conclusively clarified in law and depends on the respective contractual terms and the applicable legal provisions.

Need for Action and Recommendations During One’s Lifetime

In the event of death, the handling of digital data, assets, and user accounts depends to a large extent on the terms of use and technical capabilities of the respective providers. In practice, the greatest challenge often lies not in the legal entitlement of the heirs, but in actual access to the digital data and assets. Missing login credentials, technical protection mechanisms, or unclear and unfavorable terms of use can result in accounts, digital content, or digital assets becoming inaccessible and being permanently lost.

This highlights a clear need for action while the individual is still alive. Anyone who possesses digital data, digital assets, and user accounts should create a structured overview of all relevant accounts, login credentials, and digital assets, and specify how these should be handled in the event of death. It is particularly advisable to identify important digital assets, ensure access for trusted individuals or heirs, and formulate clear instructions for the management, continuation, or deletion of digital accounts and content.

Such arrangements can be set forth, in particular, in a power of attorney for healthcare or in a will. It is crucial that heirs are not only legally authorized to manage the digital estate but can also actually access the relevant data and accounts. Early and careful planning of the digital estate plays a key role in avoiding future uncertainties, practical difficulties, and the irretrievable loss of important data or assets.