Digital Estate

The difficulty is that it is not yet clear whether or not a digital estate can be inherited. In Switzerland, there is no case law on the matter. There are reference points from abroad, but this is very much still an evolving area — leaving room for pitfalls and uncertainty.

Arrangements can be made by providing dispositions upon one’s death, through contractual provisions, or by powers of attorney that extend past one’s beyond death; however, the particularities of the various categories (see the text box) must always be taken into account. Accessing a Facebook account is an entirely different matter from accessing a Bitcoin account. Access to the email account used for online services and for resetting passwords is of primary importance.

Not necessarily. A judgement handed down by the German Federal Court of Justice in 2018 ruled that Facebook must grant heirs access to a deceased user's account. In most cases, providers of such accounts and profiles specify what happens to accounts after a user’s death in their general terms and conditions; however, the enforceability of such regulations must be examined in each individual case. The fact that many of these providers are located outside Switzerland does not simplify the matter. It is preferable for heirs to have the relevant access information at hand to gain de facto access to the accounts.

Legal theory has not clarified whether or not cryptocurrencies, including Bitcoins, are subject to estate law. The difficulty lies in the fact that Bitcoins are not “things” under the current definition of this term; consequently, there is no ownership of Bitcoins. Since Bitcoins are traded in different forms, there are also different claims to be made against their providers.

What is certain is that estate law cannot entitle heirs to digital currency if they do not have the relevant access information. Therefore, all access information must be stored securely and be made available to the heirs after the person’s death, as mentioned above.

Photographs stored locally on computers, tablets, smartphones, USB keys, and other such media are the testator’s property and are granted to the heirs. For photographs stored exclusively in the Cloud, this transfer is not mandatory. Nevertheless, legal theory holds that heirs are entitled to access the Cloud and the content stored there.

Because there are several uncertainties surrounding the ability to inherit a digital estate, and with that, your right to your mother’s estate, enforcing such an entitlement can become very time-consuming and expensive.

It is hard to provide a comprehensive answer regarding the security of such services. One should proceed with caution and choose a reputable service provider.

Because it is advisable to coordinate the settlement of a digital estate with the planning of the rest of the estate, you should consult an estate planning specialist or a lawyer who specializes in estate law. Depending on the category of the digital estate to be settled, it may be helpful to involve other specialists, such as experts in blockchain and intangible asset law.

The most common mistake is that people simply forget about their digital estate. We recommend that you give some thought to what you are leaving behind in terms of a digital estate and what content you want your survivors to be able to access. Compile the information for this content (i.e., usernames and passwords), and make sure that your heirs receive this information after your death. This will give your survivors the de facto ability to access your digital estate. Seek advice for any uncertainties you may have.