Digital estate
Many people use numerous social networks such as Instagram, Facebook and the like to share private insights with their friends and followers. When a person dies, their loved ones wonder what happens to their smartphone, the content on it and their social media accounts. After the death of a loved one, relatives hope to gain access to information and memories through the digital content.
What is part of a digital estate?
A standardised definition of the term „digital estate“ does not yet exist. In principle, it can be said that the digital estate includes a large number of legal positions of a deceased internet user. The term covers both hardware and software belonging to the deceased. In particular, it includes data stored locally or digitally, such as photos, videos or emails. It also includes all contractual relationships of the deceased user with providers of digital products or services, such as social networks (Instagram, Facebook, WhatsApp, etc.) and cloud services.
What legal claims do heirs have to the digital estate?
In principle, the digital estate is subject to universal succession in accordance with Section 1922 BGB. This means that after the death of the testator, the assets pass as a whole to one or more persons. There is no explicit legal regulation for the treatment of digital content in an estate.
In its judgement of 12 July 2018, the Federal Court of Justice confirmed that the contract of use with a social network can also be inherited (Ref.: III ZR 183/17). In this case, the parties involved, who were the parents of a 15-year-old daughter who died under unexplained circumstances, requested access to the deceased daughter's Facebook account. After the previous instances disagreed on the inheritability of the account, the BGH confirmed the inheritability. In its reasoning, it stated that the utilisation agreement does not have a highly personal character that would exclude inheritability (para. 38 et seq.). The testator's post-mortem right of personality also did not preclude inheritability (para. 53).
The digital estate is therefore transferred to the heirs by way of universal succession in accordance with Section 1922 BGB.
How do I get access to the digital estate?
If the relevant access data is not known, the heirs must contact the relevant providers.
Most providers require appropriate proof of inheritance. The following documents are most frequently requested:
- Copy of the death certificate
- Copy of the certificate of inheritance
- Copy of the identity card of the claiming heir
How can I organise my digital estate in the event of my death?
If you want to organise your digital estate in the event of your death by means of a will or an inheritance contract, there are two constellations to consider:
1. the heirs should not have access to my data
The testator can make a testamentary disposition and instruct the executor how to deal with the digital estate. For example, instructions can be made to delete certain data or to terminate contractual relationships. To this end, it should be ensured that the executor receives the relevant access data.
It is also possible to stipulate a condition in the will. This can stipulate that the heirs or legatees are obliged to delete files and/or terminate contractual relationships.
2. the heirs should have access to my data
If the testator wishes their heirs to have access to the digital estate in the event of their death, they should ensure that the relevant access data is available to them. It can also be extremely helpful to keep a list of all accounts and subscriptions.
The testator initially has the option of listing the relevant access data themselves in their last will and testament or power of attorney. However, this can sometimes entail the risk that unauthorised third parties, such as judicial officers, could gain knowledge of the access data under certain circumstances.
It is also possible to create a digital pension certificate. In this case, the list is encrypted with access data and protected by a master password and stored on a local data carrier (e.g. on an external hard drive or USB stick). The master password and the storage location of the local data carrier must be made accessible to the heirs.