Estates, Administration and Planning Archives

Dealing with your digital assets upon death

Posted on 20 November 201920 March 2025 by Sophie Soraf

Like it or not, we live in a digital age where technology has changed the way in which we store our data and even our memories. Even if we are not aware of it, most of us will have digital assets of one kind or another. This begs the question as to how such assets are dealt with when we die. Can they be inherited and transferred to the beneficiaries in our Wills? Can our online accounts be accessed by our loved ones? Or are they lost forever?

What are digital assets?

In simple terms a ‘digital asset’ is something intangible but that has a value, be it a financial or sentimental one. Examples include but are not limited to:

Data
Software
E-mails
Designs
Patents
Online accounts
Digital photographs
Web addresses
Digital money known as cryptocurrency

Do we own our digital assets?

It might surprise you to learn that we do not always own what we perceive to be our digital assets. Often, our online accounts, for example, are used under the terms of a licence agreement, which we enter into by accepting the provider’s terms and conditions. Here’s an example: iTunes accounts – we do not own the music that we “purchase”, but rather we just have the right to listen to it under the terms of the licence agreement. A licence is usually non-transferable and will be specific to the individual licensee. This has implications after death, as the person might have wanted to pass on the content of their accounts, but the executors may find that they are unable to.

Generally if held under a licence, the licence agreement will determine what will happen to the account upon death. For example, social media accounts such as Facebook or Instagram can be “memorialised” where friends and family can continue to share memories about us after we pass away. Other providers, such as Twitter, close accounts upon death and provide our families with an archive of all our public posts.

Beyond our social media profiles, accounts such as those with Dropbox are automatically deleted after a period of inactivity. This is also often the case with email providers, although some allow access to authorised people after the account’s closure, where others allow the account to be transferred. It is not difficult to see therefore how confusion, uncertainty and logistical problems can arise. After all, the digital world is a relative newcomer and every day new inventions and systems are adding to the complexity.

To overcome these problems, you may simply opt to share your passwords so as to give access to digital content to someone you choose. However, notwithstanding issues of confidentiality during your lifetime, you should be wary of doing this because this could be in breach of your agreement under the provider’s terms of business.

How do our loved ones find out about our digital assets?

Given that our digital assets by definition have no physical presence, it can be extremely difficult to trace them when we pass away. However, it’s important that our executors are able to find details, particularly where the assets have a financial value, such as our PayPal accounts, intellectual property such as royalties or digital cryptocurrencies (e.g. Bitcoin). In some circumstances these assets can be highly valuable and should be declared by our executors, particularly as an inheritance tax liability may arise and penalties may otherwise become payable.

Our recommendation is at the very least to keep an inventory of all of your digital assets and details as to how they can be accessed, whilst still keeping your passwords private. This might involve the use of an online password manager, for example. We’ve created a useful digital assets inventory for you to use – you can download the PDF here.

Including your digital assets in a Will

You should also consider who you would like to inherit your digital assets where this is possible. You can include a clause in your Will giving your executors discretion to deal with these items, or you can include specific gifts depending on the asset in question. You should also consider your choice of executors as it is often advisable to have separate executors dealing with your digital assets, as opposed to all other assets.

There is clearly some need for legal reform in relation to digital assets and succession. There is no joined-up thinking as to how different types of digital assets are treated on death, as a result of a lack of relevant legislation. In the meantime it is important to be aware of the problems that can arise if you have not planned properly.

Wills and succession solicitors and advice

Tees has specialist succession planning solicitors who can help you:

If you have digital assets and need to write or make amendments to your Will
If you are an executor dealing with an estate involving digital assets
If you have received an inheritance of a digital asset in a Will and need advice on how this can be dealt with
If you are related to someone who has passed away without a Will in place where the deceased had digital assets

Five reasons to make a Lasting Power of Attorney

Posted on 14 March 201721 March 2025 by Sophie Soraf

The world is becoming ever increasingly aware of the problems that many of us and our loved ones will face due to mental incapacity.

One way in which you can protect your assets and give your loved ones the authority they need to look after you and your assets in such circumstances, is to prepare Lasting Powers of Attorney.

There are many reasons why Lasting Powers of Attorney are crucial documents to have in place but here are our top five:

You can choose who you wish to act on your behalf

You are therefore in control of this important appointment to enable you to appoint the appropriate person/people you trust.

If you do not make a Lasting Power of Attorney then an application is made to Court for a Deputy to be appointed. You will have no choice in the appointment of the Deputy.

You can make a Lasting Power of Attorney for Property & Financial Affairs or a Lasting Power of Attorney for Health & Welfare, or both

You can decide which of these documents are appropriate for you and your circumstances.

Previously, under the old system of Enduring Powers of Attorney, you could only ever appoint an attorney to act in respect of your Property & Financial Affairs.

A Lasting Power of Attorney is valid as soon as it is completed and can be used once it is registered with the Court

(please note however, that the Lasting Power of Attorney for Health & Welfare can only be used once you lack capacity).

If you have a General Power of Attorney, these are only valid until you lose mental capacity when it will cease to be valid- just when you need it the most!

Once the Lasting Powers of Attorney is in place then there will be no ongoing need for your attorneys to report to the Court or pay any ongoing fees

If a deputy is appointed because you did not have a Lasting Power of Attorney then your deputy will be required to provide a report to the Court on an annual basis and there will be an annual Court fee.

The Court fee has been reduced from £110 to £82!

Take advantage of this reduction.

The most important thing in respect of Lasting Powers of Attorney is that you act early. Once you lose mental capacity then you will be unable to make Lasting Powers of Attorney. The only option is then for your loved ones to apply to the Court to have a deputy appointed.

Can HMRC really take money straight from my bank account?

Posted on 14 March 201721 March 2025 by Sophie Soraf

Potentially in the future, yes… but only if you haven’t paid your tax!

In the budget the chancellor announced that HMRC were to be give powers to enable the direct recovery of debts (DRD) from a taxpayer’s bank accounts (including ISAs). Quite rightly this has caused much concern and been the subject of much debate in the media. It should be noted that the practicalities of implementing theses powers are still in the consultation stages and as yet nothing is certain.

According to this document the goal is for these powers to “modernise and strengthen HMRC’s ability to recover tax and tax credit debts from those who are refusing to pay what they owe. It will help to level the playing field between those who pay what they owe, when they owe it, and those who do not.” This sounds like an admirable goal but inevitably safeguards are needed to protect vulnerable persons and prevent HMRC abusing these far reaching powers. The treasury select committee recognised this when they noted that “Giving HMRC this power without some form of prior independent oversight – for example by a new ombudsman or tribunal, or through the courts – would be wholly unacceptable”

So who is affected?

HMRC estimate this will affect 17,000 cases each year (which is less than 0.02% of taxpayers in Self Assessment).

It will only affect those who have not paid their tax and do not engage with HMRC in respect of their tax liability, those with a “time to pay” arrangement will not be affected provided they keep to their agreement.

Under current proposals HMRC suggest the powers are only suitable for debts in excess of £1,000. The debt could be a single debt for one tax or made up of various smaller amounts covering a range of taxes (including tax credits).

What are the proposed safeguards?

HMRC will, as an absolute minimum, need to contact the taxpayer four times before any attempt to apply the DRD powers is made. This contact may be by letter or phone. They envisage that a taxpayer who previously had a good history of compliance will be contacted by HMRC around nine times before DRD is used. On the subject of communication it is important to note that HMRC typically don’t use email and would NEVER notify you of a refund via email, if you receive any email offering a tax repayment claiming to be from HMRC it is likely to be a scam.

HMRC are proposing to obtain up to date balances and a 12 month history for each of the bank accounts to ensure DRD does not inadvertently cause the taxpayer to suffer undue hardship.

HMRC will leave a minimum of £5,000 in the debtor’s account after the debt has been recovered. HMRC will put a “hold” on monies above £5,000, or any higher amount they deem reasonable after reviewing the account history, in so far as they cover any tax owed. HMRC will write to the taxpayer to inform them of the “hold” and urge the taxpayer to contact them in order to settle the tax or agree a “time to pay” arrangement where appropriate.

The “hold” placed on the monies at the bank or building society will be in force for 14 days from the date of the letter notifying the taxpayer, giving the taxpayer the opportunity to contact HMRC. If contact is made and arrangements are made to pay the tax the “hold” will be lifted or the funds transferred as part of the agreement.

HMRC state it is their preference to take funds from accounts used primarily for savings over those used to cover day-to-day expenses.

Where a “hold” is placed on a joint account HMRC propose a pro-rata proportion (i.e. 50/50) of the credit balance will be subject to DRD. The joint holder will have the right to object to HMRC on the grounds of hardship or misidentification.

So in summary

The current proposals are:

The tax owed must be over £1,000
The taxpayer must be contacted a minimum of 4 times by HMRC
HMRC must leave a reasonable amount in the taxpayer’s account to cover normal expenses – minimum of £5,000
A “hold” must be placed over the funds for 14 day before funds are taken to give the taxpayer time to object.
With joint accounts a joint holder should be able to object.

Again it is important to appreciate that this is all in the consultation stage at the moment and all subject to change so we will need to wait and see what happens. In the meantime a copy of the consultation can be found on the Government website.

What you need to know about Wills

Posted on 14 March 201721 March 2025 by Sophie Soraf

Thinking about making or updating your Will? Our wills solicitors explain why it’s so important – and how to get started.

Why should I make a Will?

By making a Will you ensure that the people you want to benefit from your estate, do so. You can be certain of the destination of your assets, rather than relying on the rules of intestacy. It will also give you peace of mind and allow you to make provision if you have a young family to ensure that guardians are appointed.

What happens if I do not make a Will?

This depends on what dependants and relatives you have. Under current rules:

If you have a spouse or civil partner and children, and the estate is worth £250,000 or less your spouse will receive everything.
If the estate is worth more than £250,000 your spouse will receive the first £250,000 and half of the remainder (together with your personal belongings, whatever their value). The other half of the remainder will be shared equally between your children. If any of your children have predeceased you, and have children of their own, then the grandchildren will inherit in their place.
If you have a spouse but no children then your spouse will receive everything.
If you have children and no spouse your children share your estate equally between them.

If you have neither a spouse nor children the whole of your estate will pass to your closest relative in the following order of preference:

Parents
Brothers and sisters of the whole blood (you have both of the same parents)
Brother and sister of half blood (one parent the same)
Grandparents
Uncles and Aunts of the whole blood
Uncles and Aunts of half blood

If you have no relatives everything goes to the Crown

Is it expensive to make a Will?

The money spent in having a will professionally drawn up is good value when you consider the peace of mind it provides. You will receive professional and thorough advice from a solicitor who specialises in preparing Wills and who is regulated by the Solicitors Regulation Authority.
We appreciate that there are many forms that you can download from the internet or purchase but these do not always deal with more complex issues of modern day families or associated issues such as inheritance tax. In our experience many ‘homemade’ Wills are ineffective. We offer a range of pricing options to reflect our clients’ needs and circumstances and we would be happy to discuss them further over the telephone.

What are ‘Executors’?

Executors are the persons appointed to look after your estate once you have died. The role of an executor is to establish what is comprised in the estate, pay any debts and taxes due and then ensure that the provisions of the Will are carried out.

Can I change my Will?

Yes. As long as you have the capacity to make a new Will or amend it via a Codicil, which is an additional document that sits alongside your current Will then you can amend it at any time.

What happens if I marry or get divorced once I have completed my Will?

If you marry after completing your Will (and you have not made the Will in contemplation of the marriage), your Will is automatically revoked.
If you divorce, the gifts made in your Will to your former spouse will be ineffective and any appointment of the former spouse as an executor or trustee will lapse.

I have assets in more than one country – do I need a Will in each country?

A Will completed in England & Wales may be sufficient to cover assets in other countries however, we would always advise that you take specialist advice from a solicitor within the foreign country where your assets are located.
We are able to offer advice through our French law department in respect of any assets you own in France.

How long will it take to complete my Will?

Depending on your requirements and provided your instructions are clear and available when requested, we will provide you with a draft Will within seven days of receiving your initial instructions, and your Will should be completed within one month. If you have any particular needs (e.g. if you are about to go on holiday) these can usually be accommodated.

Where is my Will stored once I have completed it?

We can store the Will for you in storage free of charge and we will provide you with a copy to keep at home.
Tees is a member of Certainty, the National Will Register, and we will register your Will with Certainty once it has been signed. Only certain basic details are recorded on the register and the terms of the Will remain confidential. The Will itself remains in our strongroom for safekeeping.

If you do not want your Will to be registered with Certainty, you can opt out of this service. If you would like to opt out or if you have any queries about the service, please let us know.

When should I review my Will?

We would advise that you look at your Will every 3-5 years to consider whether any changes are required. If something significant should happen in the meantime, it is also advisable to review your Will.

What is a lasting power of attorney?

Posted on 14 March 201721 March 2025 by Sophie Soraf

A lasting power of attorney is a legal document which lets you pick someone you trust to make decisions on your behalf, if you’re unable to do so yourself.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney is a legal document, which allows you to choose a person to make decisions on your behalf if you are ever unable to do so. There are two types of LPA:

Lasting Power of Attorney (Property and Affairs) – These replace the old Enduring Powers of Attorney and allow your chosen person to make decisions regarding your finances on your behalf such as: paying bills, collecting pensions and benefits, opening and closing bank accounts, buying and selling property.

Lasting Powers of Attorney (Personal Welfare) – This type of LPA has some similarities and cross over with a Living Will or Advance Directive. It allows your chosen person to make decisions about your welfare to include decisions about where you will live and the care and treatment you will receive. You can also use it to give your chosen person the authority to consent to or refuse life sustaining treatment on your behalf.

If I am mentally incapable of looking after my finances, my wife will automatically be able to do this, won’t she? What about my next-of-kin?

No, many people think that their husband or wife would automatically be able to deal with their bank accounts, pensions, investments (including any shares in any business you may own) and savings if they become mentally incapable but this simply is not the case. If you have not given a Property & Finance Power of Attorney to your husband or your wife then they will not have the authority to sign on your behalf without an order of the court.

Equally the law does not recognise the phrase “next-of-kin” and they would not have authority to act for you unless you appoint them or they are appointed by the court.

What happens if I don’t put in place a Lasting Power of Attorney and then become mentally incapable of dealing with my affairs?

In order for your family to be able to deal with your financial affairs it would be necessary to make an application for someone to be appointed as a Deputy by the Court of Protection. This may not necessarily be the person you would choose to act in this capacity. This process is more costly and longer than the preparation of a Lasting Power of Attorney and the Deputy has to account to the court for any actions taken on an annual basis.

My mum is becoming increasingly forgetful – what should I do?

It is important that she considers putting in place Lasting Powers of Attorney at the earliest opportunity. The person giving a Lasting Power of Attorney must be able to understand what is involved in granting this. If your mum’s condition deteriorates then she may reach the point when she no longer has the necessary capacity to grant a Lasting Power of Attorney. Do not leave it too late.

Can’t I wait until I become older before putting in place Lasting Powers of Attorney?

We recommend that you put in place Lasting Powers of Attorney at the earliest opportunity because mental incapacity could affect you at any time. For instance, a road traffic accident can cause head injuries or a stroke can affect anyone at any age.

If I am unable to make decisions about what medical treatment I want, who decides for me?

If you have not put in place a Health & Welfare Lasting Power of Attorney then the decision will be made by doctors and they will generally consult with your family but this may not be the person you would want to make these decisions. This is especially important in cases where couples are unmarried.

I want to remain in my own home for as long as possible – how can I give authority to my family to enable them to carry out my wishes?

Again, it will be best to appoint someone you trust to ensure that the authorities are aware of your wishes by putting in place a Health & Welfare Lasting Power of Attorney.

I have an Enduring Power of Attorney – what does this mean?

This was a document you could make prior to 1st October 2007. If you have a validly executed Enduring Power of Attorney dated before this time then it is still valid, and it deals with your Property & Financial Affairs. You cannot however, make Enduring Powers of Attorney any more and these have been replaced by Lasting Powers of Attorney.

The document does not deal with your Health & Welfare and you may wish to consider making one of these documents to work alongside your existing Enduring Power of Attorney.

If you are acting under an old EPA and you think the person who made the EPA is becoming or has become mentally incapable of dealing with their affairs, you have a duty to register the document with the Office of the Public Guardian. We are on hand to offer advice about the use and validity of any existing EPAs and to guide you through the registration process if and when it becomes necessary.

How much does a Lasting Power of Attorney cost?

We prepare Lasting Powers of Attorney on a fixed fee basis as follows:

For a single person our fee will be between £500 to £750 plus VAT.

For a couple our fee will be between £750 to £1,000 plus VAT.

Additionally, if you decide to register your Lasting Power of Attorney with the Court, the Court charges an application fee of £82 for each document.