The idea of digital inheritance is becoming more important in modern legal practice and involves passing on a deceased person’s digital assets to their heirs.
This topic, which includes possessions like social media accounts, digital documents, and online content, is not yet regulated in Brazil but is increasingly being discussed in legal circles and forensic investigations.
This article will discuss how attorneys can help their clients with digital inheritance matters and the legal obstacles that may arise.
Family Holding: Definition, Functioning, and Implementation
What does Digital Heritage refer to?
Digital inheritance involves passing on assets and virtual items to beneficiaries following the owner’s death.
- Social networking profiles on various platforms (Facebook, Instagram, LinkedIn);
- Files saved in the cloud, such as Google Drive or Dropbox.
- Cryptocurrencies and digital financial assets.
- Software licenses or digital signatures (such as those used by Netflix and Spotify).
- Rights on blogs, websites, YouTube channels, or other content that generates revenue.
- Digital wallets that are connected to online marketplaces or financial technology companies.
While some assets have clear economic worth, others, like personal memories or sentimental records, hold intangible value.
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Digital Heritage’s Legal Aspects
Brazil does not have specific laws governing digital heritage at the moment, so gaps are filled by interpretations of the Civil Code and legal decisions.
Some key factors to think about are:
- The Brazilian Civil Code states that inherited assets, including rights and financial obligations, are transferred to heirs. According to Article 1.791 of the Code, inheritance is a unified entity that passes to heirs upon the author’s death. As a result, digital assets with economic value or financial rights can be part of the inheritance and subject to succession.
- The digital inheritance is subject to the same rules as traditional inheritance law concerning rightful heirs and fair distribution of assets (Art. 1,829 of the Civil Code).
- Some platforms like Google and Facebook have rules that control what happens to accounts when the owner dies, such as deletion, memorialization, or transferring access.
How can one create a digital heritage plan?
Digital inheritance planning has become more important in today’s digital era, particularly to prevent disputes and ensure the proper allocation of online assets following the individual’s passing.
Lawyers play an important role in advising clients on the proper ways to securely and legally manage and transfer their digital assets.
Learn how to carry out digital heritage planning.
Digital Stock
Advise the customer to make a comprehensive digital list of items.
- List of accounts across various online platforms, including emails, social media, streaming services, online banking, and cryptocurrencies.
- Login details, like safely stored passwords (e.g., in a password manager).
- Instructions detailing where each digital asset should go.
- Appointment of a reliable individual to manage digital assets posthumously.
Testamentary provisions
Including specific clauses regarding digital assets in the will can prevent disagreements and guarantee that the wishes of the owner are respected.
- Decide which digital items will be passed on to the beneficiaries.
- Indicate the accounts that need to be closed or kept active.
- Ensure that account managers are named and possess the necessary technical and legal skills to carry out their responsibilities.
- Some platforms have specific rules regarding access to accounts of deceased individuals in accordance with their standards.
Digital Managers’ Utilization
Many platforms provide resources for preparing for the future after one’s passing, such as:
- Facebook gives you the option to designate a legacy contact to oversee your account or choose automatic deletion.
- Google provides the “Inactive Account Manager” feature, which can either share data with trusted contacts or delete the account if it remains inactive for a certain period of time.
- Apple offers the “Heirth Account” feature, which grants access to data saved in iCloud.
Digital management agreements
Contracts or extrajudicial statements can be beneficial for organizing the administration of digital assets, alongside a will. Various choices are available for this purpose.
- Proxy instrument allowing third parties to access digital accounts and goods: Digital Mandate.
- To guarantee the privacy of specific digital data, a confidentiality agreement is required.
- Management agreements for cryptocurrencies are crucial to guarantee the accurate transfer of digital assets such as Bitcoin and other cryptocurrencies.
Legal Matters and Data Privacy
Lawyers must provide advice to their clients on the legal issues concerning digital inheritance, taking into account:
- Data Privacy Regulations (LGPD in Brazil and GDPR in Europe) may affect the ability to access online accounts.
- Rules regarding digital inheritance and privacy policies on platforms.
- Legal enforceability of digital clauses in wills or contracts.
Digital heritage planning is crucial to prevent the loss of important assets and uphold the wishes of the owner.
Advocates need to help their clients with arranging digital assets, adding will provisions, and creating contracts for a secure and legal transfer of virtual assets.
By taking a methodical and proactive strategy, risks can be reduced, and legal assurance can be given to both heirs and those in charge of handling the digital inheritance.
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Challenges encountered by attorneys
Lawyers encounter difficulties in handling digital heritage despite the increasing demand.
- Brazil currently lacks comprehensive regulations regarding the handling of digital goods in subsequent procedures.
- Some platforms have clauses that limit account transfers or specify procedures for posthumous access.
- Ensuring the protection of private information of the deceased while respecting the rights of their heirs is a sensitive issue.
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How can attorneys help clients with handling digital assets?
Practical advice is available to help you support 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.
Insufficient planning can lead to disputes within the family, loss of important assets, and emotional challenges for the beneficiaries.
Custom Testaments
Specific arrangements for digital assets should be included in wills and other legal papers.
Advocates can help create specific clauses to authorize trusted individuals to access passwords and permissions as desired by the owner.
Contract and testament clauses that are specific
Lawyers can include customized clauses in various legal documents, such as partnership agreements and prenuptial agreements, to cover the inheritance of digital assets, thus guaranteeing legal clarity.
Legal representation for digital asset recovery.
Lawyers can legally represent heirs and request court orders to unlock accounts or recover assets when heirs are unable to access digital assets because of platform restrictions.
Managing conflicts
The lawyer can strategically represent the client’s interests in digital inheritance disputes, such as mediating agreements between heirs, resolving unauthorized access issues, and ensuring the deceased’s rights are upheld.
Digital Planning Tools Utilization
Several companies like Google, Apple, and Facebook provide options for posthumous planning, enabling users to designate digital heirs or establish access regulations for their information.
Lawyers can assist clients in utilizing these tools and making sure they reflect their future desires.
Complying with the LGPD and other privacy policies
Privacy regulations such as the General Data Protection Act (LGPD) and other laws place limitations on handling personal data post-mortem.
Lawyers need to advise clients and beneficiaries on the legal boundaries concerning the access and utilization of this information, preventing legal issues and upholding privacy protection.
Awareness and Education
Lawyers can host events and create educational materials to raise awareness about managing digital assets and succession planning.
Ensuring secure transfer of digital assets: Safeguarding virtual goods in the digital heritage context
Digital heritage is becoming more important in consecutive legislation, requiring specific focus from attorneys and beneficiaries.
The lack of specific regulations in Brazil presents difficulties, however, methods like digital catalogs, thorough wills, and contractual provisions can ensure a secure transfer of digital assets.
It is crucial to recognize the significance of digital estate planning to prevent conflicts and protect valuable assets.
Lawyers can help clients organize and protect their digital assets effectively by using a planned and proactive legal strategy, ensuring the proper fulfillment of the owner’s wishes.
Check out our article about Bens Sharing: its occurrence and methods.
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.
Which virtual items are eligible for inclusion in the Digital Heritage?
– Digital wallets associated with online marketplaces or financial technology companies.
