The digital legacy – What happens with data after death?
Our lives are increasingly taking place online - e-mail accounts, cloud storage, online banking, social media profiles, or streaming services; we leave digital traces in all these ways, and at a rapidly increasing rate. Yet, what happens to them after death? Anyone who would like to ensure that personal data remain protected or are transferred to heirs in an orderly manner should take care of their digital legacy at an early stage.
Digital legacy in the context of inheritance law
Digital legacy refers to all the digital assets belonging to an individual: hardware such as computers or external hard drives, software, stored data, access rights, e-mail accounts, social media profiles as well as contracts with telecommunications and internet services providers. Memberships in online platforms or cloud services are also included. To put it briefly, everything an individual uses or owns digitally can be part of their estate.
German inheritance law does not recognise any specific ‘digital inheritance law’. A digital legacy is inherited in accordance with the general provisions under inheritance law. Heirs generally assume the rights of the deceased, insofar as they are not clearly highly personal or predominantly personal. This applies both to hardware and also for account-based user relationships, such as, social media or e-mail accounts.
Access and privacy rights
Part of the digital legacy will be held by external providers that, potentially, could raise objections with regards to data protection or privacy rights. Nevertheless, heirs generally have a right to information and may access the contents. In this context, you should bear in mind that access is possible, whereas the heirs may actively use the accounts solely if this has been expressly provided for or is legally permissible.
Practical examples
- An heir can access the cloud storage of a deceased person to back up important documents.
- In the case of social media accounts, heirs can view messages or download photos, but they may not post on behalf of the deceased without further action, unless this is explicitly regulated.
- Contracts with internet or telecommunications services providers will also be transferred to the heirs, except where the provider has effectively excluded inheriting.
Practical arrangements for legacy management
If you wish to manage your digital legacy yourself, you should create a multifaceted plan during your lifetime.
1. Power of attorney/post-mortem power of attorney, will or contract of inheritance
These arrangements can specify who will have access to digital accounts and data after death and who will be responsible for managing them. Furthermore, specific instructions can be given on how to handle individual accounts or data (for example, whether certain content should be backed up, deleted, or contracts terminated).
2. Executor of the estate
Appointing an executor of the estate ensures that the arrangements regarding your digital legacy are reliably implemented. Particularly sensitive data can thus be deleted or user accounts closed without heirs having to first access this content.
3. Secure storage of access data
Secure storage of access data - Access data should not be stored unprotected. We would recommend storing them in encrypted form in a password list or password manager. The required master password should be known solely to trustworthy individuals or a notary in order to prevent unauthorised access.
Such measures would allow the digital legacy to be transferred in an orderly manner and personal data to be protected from unauthorised access. It is recommended that legal advice be taken early on, especially in the case of extensive digital accounts or sensitive data.
