Certainty as to the subject matter of a trust is one of the three fundamental requirements as to a trust. How digital assets are defined for trust purposes and generally is now an important asset and estate planning consideration.
The explosive growth of social media, digital storage and internet passwords means that careful consideration needs to be given as to how these digital assets can be transferred to executors and trustees following death.
While a will can appoint a digital executor and trustee, there is limited legal guidance regarding the transfer or transmission of digital rights on death.
Recognising this, the New South Wales state government has asked its Law Reform Commission to examine the problem of post-mortem access to a deceased person’s digital assets. It is the first Australian jurisdiction to investigate whether new laws are needed to deal with access to a deceased person’s data.
The Commission’s report to the state government is due within 18 months.