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  • Digital records should be considered during estate planning.
  • Legal personal representatives may need to search digital records to administer or manage an estate.
  • Provisions may be included in wills, powers of attorney and enduring guardian documents, authorising the legal personal representative to deal with digital records. This makes the wishes of the client known and should assist in dealings with service providers.

The report of the NSW Law Reform Commission, Access to digital records upon death or incapacity, brings to the fore an issue of growing importance for estate planning and estate administration. Whilst the report makes recommendations which will require a legislative response, and a nationally consistent approach, it also includes useful prompts for current practice. That is the focus of this article.

What is a digital record?

Digital records may exist in digital or other electronic readable form. It is an expression deliberately chosen by the Commission to be broader than the more conventional ‘digital assets’, as the record may not be an ‘asset’ in the conventional sense – it may not be owned by the user, even though it may have been created by or relate to the user. Digital records may have financial or sentimental value to the user. Often they will be useful to a person dealing with the user’s managed or deceased estate. The report observes that people regularly access photographs, music, movies, emails, social media, games, bank accounts and even medical records online. People are assembling a digital legacy of considerable volume and importance which can include things of financial value such as domain names and copyright interests in literary works that only exist online.

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