Online Reporter
Miriam Tose Majome-Herald Correspondent
AS we spend more and more time online, we are accumulating assets and liabilities in the same way we do in the physical world.
We have online bank accounts, insurance policies, shares, cryptocurrencies, e-books, films, music, photographs, insurance policies, email accounts, intellectual property like blogs, domain names, videos and much more.
However, do we ever seriously think about what will happen to our electronic data acquisitions after we die? Who will own it? What will happen to it? What will happen to our X, Facebook, Snapchat, WhatsApp, Spotify accounts, among others.
What about email accounts with valuable information? What about those secret accounts that only you know about, which you have barricaded with fingerprints, and other cryptic passwords and barriers, so that no-one else can invade your privacy?
Are there laws for this?
Digital estate planning
We have emphasised the importance of planning estates for when we die, but in addition to planning for the distribution of physical assets, we must now also plan for digital estates.
There are valuable assets in cyber space, which include money, bank accounts, insurance policies, and so much more.
Examples include intellectual property such as unpublished manuscripts, videos, photographs, domain names drawings, designs, and musical compositions. There is a lot of value vested in digital assets that they cannot be merely abandoned into the vast nothingness of the internet.
They say the internet never forgets: what if someone dies and their inactive abandoned account is violated and used for nefarious purposes?
Who will stand up for them and fight for them like an appointed executor would?
A lot of bad things happen when there is no plan. There is a lot of folly with being over guarded and over secretive with one’s electronic devices to the extent that valuable electronic assets can go unclaimed forever.
People can even lie dying just because the information needed to save them is safely secured in the phone beside them and they are the only person who can access it.
One can even be buried like a pauper because no one else knows that they had a funeral policy safely hidden in their heavily guarded phone.
Unlike physical property, digital assets are often protected by layers of security: passwords, encryption, and two-factor authentication. This inherent security, while vital during life, becomes a formidable barrier after death. Without a clear plan, these valuable assets can become permanently inaccessible and obsolete, lost in the vastness of cyberspace.
Our lives are inextricably linked to the digital realm and there is no going back. Even courts and government business are now online. We are still to understand what this new way of life really means because it is still a new frontier in human development.
Our digital footprint and acquisitions are growing with every click, swipe, and transaction. These intangible assets are often overlooked in traditional estate planning, yet they hold significant financial and sentimental value.
They raise the critical question of what will happen to our digital legacy when we are no longer here.
The rapid expansion of internet usage in Zimbabwe, evidenced by a national penetration of 48,1 percent and over 6,5 million subscribers as far back as 2016, underscores a profound shift towards this new way of living.
As more individuals accumulate digital wealth and presence, the need to plan for the digital afterlife is not just a modern convenience, but a pressing necessity.
The law and the digital divide
In Zimbabwe, the Wills Act (Chapter 6:06) provides the legal framework for the execution, validity, and interpretation of wills, governing how a person’s property is distributed upon their demise.
It also outlines the role of an executor, the individual appointed to administer the deceased’s estate. An executor is typically granted access to the deceased’s property, including private and confidential business affairs, through Letters of Administration.
There is no specific law in Zimbabwe dedicated to digital assets and estate planning that automatically grants an executor the authority or means to access a deceased person’s digital life.
This gap in the law leaves executors and heirs in a precarious position, often relying on the varying and sometimes restrictive policies of individual service providers.
Social media after death: A case study of Facebook
The concept of a ‘digital footprint’ living on eternally is perhaps most evident in social media.
Without intervention, a social media account can remain dormant indefinitely, a digital ghost. While some platforms may eventually deactivate accounts due to inactivity, others persist. Some accounts will simply expire due to non-payment, but many are on auto renewal.
Your bank account will continue to pay into oblivion until it runs out of money. You may continue to pay for that Netflix account long after you are dead if your estate is not registered and your bank accounts are not formally suspended.
Facebook, for instance, has been proactive in addressing the issue of deceased user accounts. They have an estimated five million inactive accounts attributed to death, so they have led the way.
Facebook memorialises accounts upon request and proof of death. This transforms the profile into a tribute page, allowing existing friends to view past posts and share memories, while ceasing other functions and public posts.
A legacy contact can manage the account and respond to posts. Facebook can also permanently delete the account upon request and permits authorised individuals to download material from deceased accounts.
This is vital for preserving photographs, messages, and other digital memories that beneficiaries might wish to inherit.
Different platforms have different rules for handling this tricky realm. However, the point has been made that it is now essential to include digital assets in estate planning, explaining how they can be accessed.
So, there is someone who should always know your passwords.
International digital estate legislation
Many developed countries are actively working to establish clearer legal frameworks for digital asset inheritance.
For instance, the United States passed the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA).
It provides executors with the legal authority to manage digital assets in accordance with the user’s estate plan.
The absence of any specific legislation in Zimbabwe creates legal uncertainty. There is a need for law regarding access to deceased digital assets for executors and beneficiaries. We need to start conversations on this topic and develop laws relevant to our circumstances.
Taking everything from developed countries is not always the answer.
Miriam Tose Majome is a lawyer and a Commissioner with the Zimbabwe Media Commission. She writes in her personal capacity and can be contacted on [email protected].
Bongani Ndlovu