The concept of digital inheritance is increasingly relevant in modern legal practice and involves passing on a deceased individual’s digital assets to their beneficiaries.
Assets like social accounts, digital files, and digital content are not yet specifically regulated in Brazil, but they have become increasingly discussed in legal and forensic contexts.
In this article, we will discuss how lawyers can advise their clients on digital inheritance matters and the legal obstacles they may face. Take a look!
Family Holding: Definition, Functioning, and Implementation
What does Digital Heritage refer to?
Digital inheritance pertains to the assets and virtual items that can be passed on to beneficiaries following the owner’s passing.
- Social networking profiles (Facebook, Instagram, LinkedIn);
- Files saved in online storage services like Google Drive or Dropbox;
- Cryptocurrencies and digital financial assets.
- Software licenses or digital signatures are required for services like Netflix and Spotify.
- Ownership of blogs, websites, YouTube channels, or other content that generates income.
- Digital wallets associated with online platforms or financial technology companies.
Some of these assets hold direct economic worth, while others, like personal memories or sentimental records, are intangible.
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Digital Heritage Legal Considerations
Brazil currently lacks specific laws to govern digital heritage, relying instead on interpretations of the Civil Code and legal precedents to address gaps.
Certain key factors to take into account are:
- The Brazilian Civil Code states that inheritance includes both rights and financial obligations of the deceased. According to Article 1.791, inheritance is transferred to heirs upon the death of the deceased, encompassing digital assets with economic value or financial rights.
- The digital inheritance is subject to the same rules as traditional inheritance regarding rightful heirs and equitable distribution of assets (Article 1,829 of the Civil Code).
- Some platforms like Google and Facebook have rules about what happens to accounts when the owner dies, such as deleting, memorializing, or transferring access.
How can you create a plan for Digital Heritage?
Digital estate planning has become more important in the modern era, particularly to prevent disputes and guarantee the proper distribution of online assets following the owner’s passing.
Lawyers can provide valuable guidance to clients on the proper ways to securely and legally manage and transfer their digital assets.
Discover the process of digital heritage planning.
Digital list of items
Advise the client to develop a comprehensive digital list of items, including:
- List of profiles on internet platforms (such as email, social media, streaming services, online banking, cryptocurrencies, etc.).
- Login details, including passwords securely stored, like in a password management tool.
- Instructions detailing where each digital asset should go.
- Appointment of a reliable individual to manage online assets post death.
Testamentary provisions
Specific clauses regarding digital assets in a will can prevent conflicts and guarantee adherence to the wishes of the testator.
- Identify the digital items that will be passed on to the beneficiaries.
- Indicate which accounts should be closed or kept.
- Identify account managers and confirm they possess the necessary technical and legal skills to oversee accounts.
- Some platforms have specific rules regarding access to accounts of deceased individuals due to their standards.
Digital Managers’ Utilization
Many platforms provide resources for planning after death, like:
- Facebook lets you designate a legacy contact to handle your account or choose automatic deletion.
- Google provides the “Inactive Account Manager” feature, allowing users to send data to trusted contacts or delete the account due to inactivity.
- Apple offers the feature of “Heirth Account,” which provides access to data stored in iCloud.
Digital Management Agreements
Contracts or extrajudicial statements can be beneficial for organizing the management of digital assets, along with a will. Various choices are available for this purpose.
- Proxy instrument that allows third parties to access digital accounts and assets.
- To guarantee the secrecy of specific digital data, a confidentiality agreement is required.
- It is crucial to guarantee the accurate transfer of digital assets such as Bitcoin and other cryptocurrencies through management contracts.
Legal Issues and Privacy of Information
Lawyers play a crucial role in advising clients on legal matters concerning digital inheritance.
- Data protection regulations such as LGPD in Brazil and GDPR in Europe may affect the ability to access online accounts.
- Rules on digital inheritance and privacy policies for online platforms.
- Validity of digital clauses in wills or contracts.
Digital heritage planning is crucial to prevent the disappearance of important assets and to uphold the wishes of the owner.
Advocates need to help clients with arranging digital assets, adding testamentary clauses, and creating specific contracts for a secure and lawful transfer of virtual assets.
With an organized and proactive strategy, risks can be reduced and legal clarity can be provided to those in charge of handling the digital inheritance.
Legal AI Repository: Legal document management
Lawyers encounter various obstacles.
Lawyers encounter difficulties managing digital heritage despite increasing demand.
- Brazil currently lacks specific regulations outlining the treatment of digital goods in the consecutive process.
- Some platforms have clauses that limit transferring accounts or establish specific procedures for postmortem access.
- Ensuring the protection of sensitive data of deceased individuals while respecting the rights of their heirs is a sensitive issue.
How can attorneys help clients with handling digital assets?
Practical advice is provided for helping customers with digital products.
Legal training
Lawyers can advise their clients on the significance of determining the fate of digital assets like social media accounts, cryptocurrencies, website domains, and digital libraries.
Improper planning can lead to family disputes, loss of assets, and emotional challenges for beneficiaries.
Customs of Testaments
It is important to incorporate detailed guidelines regarding digital assets in wills and related legal papers.
Advocates can help draft specific clauses to authorize trusted individuals with passwords, access, and permissions as desired by the owner.
Contracts and wills contain specific provisions.
Lawyers have the ability to include personalized clauses in various legal documents, such as social contracts and prenuptial agreements, aside from the standard will. This helps in facilitating the transfer of digital assets and ensuring legal clarity.
Legal representation for digital asset recovery
Lawyers can take legal action to help heirs access digital assets if platforms have strict policies preventing access.
Conflict Resolution
In cases concerning digital inheritance, the attorney can strategically represent the client’s interests by mediating agreements among heirs, resolving unauthorized access issues, and ensuring the deceased’s rights are upheld.
Digital planning tools utilization
Many companies like Google, Apple, and Facebook provide options for post-mortem planning, which enable individuals to select digital successors or establish access guidelines for their information.
Lawyers can assist clients in using these tools effectively and making sure they match their desired outcomes.
Adherence to LGPD and other Privacy Policies
Privacy regulations such as the General Data Protection Act (LGPD) place limitations on handling personal data following an individual’s passing.
Lawyers need to advise clients and beneficiaries on the legal boundaries of accessing and utilizing data to prevent legal issues and safeguard privacy effectively.
Awareness and Education
Lawyers can host presentations, workshops, and educational material about managing digital assets, resolving conflicts, and emphasizing the importance of proper estate planning to increase awareness among a wider audience beyond direct customer interactions.
Ensuring secure delivery of virtual assets in digital heritage.
Digital heritage is becoming more important in consecutive legal matters, requiring specific focus from legal professionals and beneficiaries.
Challenges arise in Brazil due to the lack of specific regulation, but using strategies like digital inventories, comprehensive wills, and contractual clauses can ensure a secure transfer of virtual assets.
Awareness of the significance of digital estate planning is crucial to prevent conflicts and protect valuable assets.
Lawyers can help clients organize and protect their digital assets effectively by using a systematic and proactive legal strategy to uphold the owner’s wishes.
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