The term estate planning refers to the preparation of tasks that serve to manage an individual’s financial situation in the event of their incapacitation or death.

However, when we think of estate planning, certain assets come to mind. We typically think of real estate, vehicles, jewelry, and other tangible personal property. We might also think of financial assets, such as cash, stocks, and bonds. Those assets may have value—from both an economic and tax perspective.

In recent years, many of our properties have been replaced by digital assets. Our photographs, music collections, and written correspondence have been replaced by digital pictures, online music collections, and emails, respectively. Other assets that still exist in traditional form are now controlled through a digital format. For example, we are now maintaining bank accounts on the Internet. We are even investing in financial assets that exist only in their electronic form, such as cryptocurrencies. [i]

A whole virtual estate may now exist upon a decedent’s death. Therefore, it has become increasingly important to plan for the administration of these digital assets.

DEFINITION OF DIGITAL ASSET

A “digital asset” has been defined as “an electronic record in which an individual has a right or interest.[ii] Examples of digital assets include:

1. Online banking accounts.
2. Social media accounts: Facebook, X (formally Twitter), Instagram and more
3. Blogs and domain names.
4. Email accounts: Gmail, Outlook, Yahoo, etc.
5. Cloud storage accounts.
6. Online store and shopping accounts: Jumia, Aliexpress, etc.
7. Subscription service accounts: Streaming services, magazines, and software licenses.
8. Utility accounts.
9. Gaming accounts.
10. Cryptocurrency and NFTs.

REASONS FOR PROTECTION OF DIGITAL ASSET

Without proper digital estate planning, these assets may be lost or rendered inaccessible upon the death of the owner. This can be extremely difficult for loved ones unaware of these assets’ existence or location. Furthermore, the legal framework surrounding digital assets is still evolving, making it critical to develop a clear strategy.

1. Preserving Memories: Many of our digital assets, such as photos and videos, have sentimental value for our loved ones. Proper planning ensures that these memories are preserved and accessible.

2. Financial Considerations: Cryptocurrencies and digital wallets can be valuable assets. These assets may be lost or remain inaccessible to heirs if proper planning is not implemented.[iii]

3. Privacy and security: By managing your digital assets, you can protect sensitive information while reducing the risk of identity theft or unauthorized access.

4. Business Continuity: If you run an online business or have professional digital assets, ensuring their continued management or transfer for business partners or employees is critical.

5. Legal Compliance: A variety of laws and regulations in Nigeria including The Wills (Amendment) Act, 1852, the Wills Law of various states, the Administration of Estate Laws of the various states, and Nigerian Data Protection Regulation 2019, govern the disposition of digital assets following death. Digital estate planning assists in ensuring compliance and reducing potential legal complications.

LAWS THAT ENABLE THE PROTECTION OF DIGITAL ASSETS IN NIGERIA

The major laws in Nigeria that regulate the management of a deceased estate are the Wills Act of 1852, and the Administration of Estate Law of various states. However, these laws mostly govern the disposition of tangible physical assets and not digital assets.

It has also been argued that the Nigerian Data Protection Act 2023 protects the personal data of an individual but it should be noted that the processing of data applies to a living person.[iv] Also, the SEC rules on issuance, offering platforms, and custody of digital assets simply apply to individuals seeking to raise capital through digital assets and not to the management of a deceased estate.

There is generally no robust law that governs how the digital assets of an individual should be managed upon the death of an individual in Nigeria.

At most, the cue should be taken from other countries such as the United States that enacted a comprehensive law- Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), for the management of a digital asset of a deceased. [v]Most states have adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which provides a three-tier framework for accessing and managing your digital assets:

• The act gives priority to providers of online tools for handling the accounts of customers who die or become incapacitated. For example, Google provides an “inactive account manager,” which allows you to designate someone to access and manage your account. Similarly, Facebook allows users to determine whether their accounts will be deleted or memorialized when they die and to designate a “legacy contact” to maintain their memorial pages.
• If the online provider doesn’t offer such tools, or if you don’t use them, then access to digital assets is governed by provisions in your will, trust, power of attorney, or other estate planning documents.
• If you don’t grant authority to your representatives in your estate plan, then access to digital assets is governed by the provider’s TOSA.

STEPS TO PROTECT DIGITAL ASSET IN NIGERIA

1. Take inventory of all your digital assets: The first step is to take inventory of these assets, which include, but are not limited to, the following such as email accounts, social media accounts, digital photos, video, music, and book collections, online banking and brokerage accounts, payment services, such as PayPal or Venmo, cryptocurrency or nonfungible tokens (NFTs), online betting accounts, blog or website content and domain names, online video channels, such as YouTube, that produce advertising revenue, and online reward programs and points, such as credit card rewards or frequent flyer miles etc. [vi]

Compile a digital assets inventory worksheet and share it with trusted individuals such as your spouse and the executor of your estate. Consider using a password management tool to organize and store passwords.

2. Appoint an executor: Name someone you can trust to manage your digital assets after your death. Ensure they have all the necessary information and instructions.

3. Make a Will: Make a will that includes your digital assets. Make it clear how you want these assets to be handled, whether by bequeathing them to specific people or organizations or by providing management instructions

4. Maintain Records: Review and update your digital asset inventory and any related instructions on a regular basis to account for changes in your online presence or preferences.

5. Consult Legal and Financial Professionals: Seek advice from legal and financial experts who specialize in digital estate planning. They can assist you in ensuring that your plan complies with applicable laws and tax implications.

CHALLENGES IN PROTECTING DIGITAL ASSET IN NIGERIA

Given the breadth of digital assets, starting the process of digital estate and succession planning can be difficult and often overwhelming, especially in a country like Nigeria. This is traceable to the lack of robust laws relating to the transferability of digital assets in estate planning.  Further complicating these matters is the uncertainty of existing ownership and transferability laws and the risk of online identity theft.

Thus, the rights of executors, agents, guardians, and beneficiaries with regard to accessing digital assets are muddy at best. This is because providing your representatives with login credentials to access your digital assets is critical, but it’s not enough. They will also need legal consent to gain entrance to and manage your accounts. [vii]

Absent such consent, they may violate federal or state data privacy laws or, in the case of financial accounts, may even be guilty of theft or misappropriation. It’s unlikely that the authorities would prosecute your representatives for unauthorized access to your accounts, but it’s advisable to ensure they have explicit authority rather than rely on their possession of your login credentials.  At best what operates in Nigeria, is that management of an individual’s digital asset is done by including the assets in a will to be managed by an executor.

CONCLUSION

In our technologically advanced world, digital estate planning is no longer an option, but rather a requirement. The monetary and sentimental value of our digital assets necessitates careful consideration and planning to protect our interests and preserve our legacy. Individuals can ensure that their online legacy is preserved, their loved ones are cared for and their digital assets are managed.

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[i] Timothy M. Ferges, “Estate Planning and Administration in the Digital Age”, <https://www.mccarter.com/wp-content/uploads/2019/10/PDF-TaxesMagazineEstatePlanning11-18_Ferges.pdf>, accessed on 19/10/2023

[ii] Ibid

[iii] 1^st Fiduciary, “Digital Estate Planning and Management of Online Asset”, <https://firstfiduciary.ng/digital-estate-planning-and-management-of-online-assets/>, accessed on 19/10/23

[iv] African Academic Network on Internet Policy, “Life after Death: Data Protection Right of Deceased Person”, <https://aanoip.org/life-after-death-data-protection-rights-of-deceased-persons/>, accessed on 19/10/23

[v] Neil Fang, Estate Planning in a digital world”, < https://www.linkedin.com/pulse/estate-planning-digital-world-neil-fang>, accessed on October 19, 2023

[vi] 1^st Fiduciary, Supra

[vii] SGR, “Estate and Succession Planning in Digital Age”, < https://www.sgrlaw.com/ttl-articles/2015-2/>, accessed on 19/10/23

Written by Deborah Dada for The Trusted Advisors

Email us: info@cms.trustedadvisorslaw.com

Telephone Number: +234 810 159 9159