Introduction
Technology had long ago become an integral part of human life. This digital space or realm is used for various purposes such as safeguarding personal privacy, managing work-related activities, generating income or even earning reputation and recognition through these digital activities. A Digital Estate encompasses these digital assets and liabilities acquired in the digital realm. This article helps in understanding these digital estates and the problems in inheriting them by discussing Indian laws, the role of service providers, challenges to successors, comparative legal studies, and finally, recommendations to enact legislation to address the issues mentioned for proper management of these estates and their inheritance.
What Are Digital Estates?
Digital estates mainly refer to the digital assets and property that a person acquires electronically and uses digital mediums to store and manage such estates. These include a wide range of items such as Documents, Photos and videos (stored either in cloud services such as Google Drive, Dropbox, or on a personal device), Online Banking information, Email, Social media, E-commerce accounts, Digital Currency (e.g., cryptocurrencies like Bitcoin, Ethereum), Intellectual Property such as Domain names, Software licenses, trademarks, copyrighted digital content that includes, E-books, E-library, Music albums, artwork, Blogs or websites (that generate revenue), and other electronically filed Patented works (such as software development) etc.
Indian Laws on Digital Estate Inheritance
Currently, there is no specific law in India that deals with digital estate planning, protection and bequeathing procedures in both cases during a will and an intestate death. Neither the digital laws such as the Information Technology Act, 2000 and the India Digital Personal Data Protection Act (DPDP Act), 2023 nor the Succession laws provide for Digital Estate Inheritance. The Succession laws in India provide for the succession (intestate or through will) and management of physical assets including movable and immovable property, and Intellectual Property.
Currently, the Digital Legacy takes place, first, if there is an estate plan or will, prepared by the digital decadent concerning the inventory, accessing, distribution and management of the digital estate, then that applies. Secondly, in cases where there is no plan or will, the service terms and rules will apply as agreed by the digital decadent. Many service providers provide the option of leaving behind the legacy contacts such as Facebook, to contact and render the rights of the account when the account is left inactive for a certain period.
Thirdly, in cases where the service provider does not give such an option, or the decadent did not leave legacy contacts due to lack of awareness and died intestate without leaving behind any information concerning accessing the estate, it is left to the discretion of the service providers who mostly lock those accounts, as per their default terms and conditions leaving behind the legal heirs without any option of inheriting the estate. Henceforth, this is the gap that the law should address in protecting digital estate and its inheritance in India.
Role of Service Providers in Digital Estate Management
Service providers like Facebook, Google, and Apple have implemented certain terms of service (ToS) allowing users to decide on how their accounts should be managed in cases after their death. The usual legacy features of these services either let users appoint a legacy contact to manage their account after their death (like Facebook) or enable users to designate trusted individuals to access their account data (Google’s Inactive Account Manager). However, if the user sets no instructions concerning this, then after a certain period when the account remains inactive, the data will be locked and made inaccessible without leaving any option for the legal heirs.
Challenges With Terms of Service Agreements
TOS agreements function as binding contracts between the service provider and the user. Usually, the terms and conditions of these agreements were drafted by the service providers themselves, however, those were not well informed to the users because of the technical language used and they were often compelled to enter into these agreements to avail of their services.
Another major challenge is the lack of uniform digital legacy policies adopted by various service providers, which often leads to confusion for both users and heirs, where the users have to keep note of such TOS where no posthumous account management is provided to a third party due to their rigid privacy policy rules, which make heirs lose the access to the data unless such decadent were well aware of digital estate management through wills and estate planning and provide required information to gain the access.
Comparative Legal Approaches to Digital Estate Inheritance
There is no uniform approach to digital estate inheritance across the world. Some jurisdictions do not even recognise certain digital assets. The United States had a specific designated law to deal with this issue. Other developed countries such as Canada, and Australia consist of digital estate inheritance in succession and probate laws whereas the United Kingdom is working on comprehensive legislation. The EU’s General Data Protection Regulation (GDPR), which consists of rules to protect personal data, left much of the digital estate inheritance procedure to the service providers with some guidelines. The US RUFADAA will be helpful for reference in this aspect.
The original enactment was the Uniform Fiduciary Access to Digital Assets Act, of 2014 (UFADAA). The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) is the revised version of the UFADAA drafted in 2015 after the latter attracted a lot of criticism from privacy advocates and online service providers due to its grant of broad powers to fiduciaries to access, control, or manage digital assets aimed to grant. That could only be reversed if a decedent explicitly opted out of UFADAA while still alive.
However, the RUFADAA focused on balancing privacy and access, allowing access to heirs only after explicit consent from the decadent or the court. Under the RUFADAA, managing digital assets follows a structured hierarchy when a person dies intestate. First, if the decedent sets any preferences within their digital accounts (such as designated legacy contacts or account settings) take precedence. If no such instructions exist, RUFADAA allows a court-appointed fiduciary (like an estate administrator) to access the decedent’s digital assets in line with state probate laws.
The act distinguishes between content data (emails and private messages) and non-content data (like metadata or account logs). Without explicit permission, fiduciaries are generally restricted to non-content data, preserving the decedent’s privacy. If access to content data is deemed necessary, the fiduciary must obtain a court order proving its importance to estate management.
Recommendations for Enacting Legislation
Legal Recognition of Digital Estate and Its Inheritance
The government should enact provisions that grant legal recognition to digital estates and address the procedural and technical aspects of their inheritance. This will provide legal backing for digital estate management, which is essential with the growing usage of digital media. The legislation should also see whether digital estates can be integrated into existing succession laws or require separate mechanisms to deal with the different types of digital assets.
Issue of Data Privacy in Digital Estate Inheritance
The decadents’ data privacy and protection are to be addressed in Pari passu with the rights of legal heirs. For instance, in the cases of intestate succession, as dealt with by the US RUFADAA Act, the rights of the legal heirs are to be restricted to cover log-type information about an electronic communication such as the email addresses of the sender and the recipient, and the date and time the communication. Judicial intervention should be mandated to assist the data fiduciaries in assessing the legitimacy of the heirs’ claims and their rights to access the information.
Uniform, Standard and Mandatory Rules and Policies for Online Service Providers
The legacy policies across the online service providers are not even. These inconsistencies lead to confusion among the users and heirs alike. Therefore, providing a statutory uniform standard policy for all online services makes using the legacy policy viable. Moreover, the terms and conditions of these legacy policies should be explicitly mentioned, making them mandatory so that even in case of intestate deaths digital succession will not become difficult for the heirs.
Awareness of Digital Estate Planning
It is recommended to create awareness through mass media, of the importance and necessity of proper storage, management, protection, and access to digital assets and estates. As there are multiple digital assets, awareness helps users streamline their assets, allowing the successors to avail and access them easily upon the user’s death.
Conclusion
Digital Estate comprising various types, such as photos, videos, documents, and Intellectual Property, has gained prominence due to its increased usage and accumulation by many people. This leads to the question of how to manage this estate, bequeath them, etc. Enacting laws on digital estate, defining structured succession processes for different types of digital assets, and addressing the challenges mentioned above, will enhance the management of digital estate and its inheritance.
This blog is written by Kasina Venkata Sri Varsha, 4th year, B.A. LLB (Hons.) at Damodaram Sanjivayya National Law University.