Digital estate

In this day and age, a much more intensive part of life is shifting to the smartphone and the Internet. Many people use numerous social networks such as Instagram, Facebook and Co. to share private insights with his friends and followers. If a person now dies, the relatives wonder what happens to the smartphone, the content on it and the accounts in the social media. After the death of a loved one, relatives in particular hope to be able to preserve their last mementos by accessing the digital content.


What is included in a digital estate?

A uniform definition of the term "digital estate" does not yet exist. Basically, it can be said that the digital estate includes a variety of legal positions of a deceased Internet user. The term covers both hardware and software belonging to the deceased. In particular, it includes locally or digitally stored data, such as photos, videos or e-mails. 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 the universal succession pursuant to Section 1922 of the German Civil Code. Accordingly, after the death of the testator, the assets pass as a whole to one or more persons. There is no express statutory regulation for the treatment of digital content in an estate.

In its ruling of July 12, 2018, the German Federal Court of Justice confirmed that the user agreement with a social network is also inheritable (Case No.: III ZR 183/17). In this case, the parties involved, who were parents of a 15-year-old daughter who died under unexplained circumstances, sought access to the Facebook account of the deceased daughter. After the previous instances disagreed with regard to the inheritability of the account, the BGH confirmed this. In its reasoning, it stated that the user agreement does not have a highly personal character that would preclude inheritability (para. 38 et seq.). Nor does the testator's post-mortem right of personality preclude inheritability (marg. no. 53).

Thus, in the absence of a deviating disposition upon death, the relatives also inherit the digital estate by way of universal succession pursuant to Section 1922 of the German Civil Code.


How do I obtain access to the digital estate?

If the relevant access data is not known, the heirs must contact the relevant providers.

Most providers require appropriate legitimation about the status of the inheritance. The following documents are most frequently requested:

- Copy of death certificate
- Copy of the certificate of inheritance
- Copy of the identity card of the requesting heir

It is also possible to set an account to memorial status. For this purpose, a request can be submitted, for example, on Facebook by a family member or friend. The hurdles for this are not particularly high and only the name of the deceased person and the (estimated) date of death are required.


How can I arrange my digital estate in the event of my death?

If you want to regulate your digital estate in the event of your death by means of a will or a contract of inheritance, there are two constellations to consider:

1. the heirs should not have access to my data.

If you want to prevent your digital private life from being accessed after your own death, you have the option of naming heirs who you trust with regard to your digital estate, in deviation from the statutory succession.

If the testator has appointed an executor in his will, he can give the executor instructions on how to deal with the digital estate. For example, the executor can be instructed to delete certain data or terminate contractual relationships. For this, it should be ensured that the executor receives the relevant access data.

Furthermore, it is possible to stipulate a condition in the will. This can have the content that the heirs or legatees are obligated to delete files and/or terminate contractual relationships.


2. the heirs should have access to my data

If the testator wishes his heirs to have access to the digital estate in the event of his death, it must be ensured that they are provided with the appropriate access data. 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 himself in his testamentary disposition upon death or health care proxy. However, this can sometimes entail the risk that unauthorized third parties, such as judicial officers, could possibly take note of the access data.

Furthermore, it is possible to create a digital precautionary certificate. In this case, the list of access data is encrypted and protected by a master password and stored on a local data carrier (for example, on an external hard drive or a USB stick). The master password and the storage location of the local data carrier must be made available to the heirs.