Applicable legal basis
A digital legacy will be assessed in accordance with general German inheritance law because, in this respect, there is no ‘special digital inheritance law’ (see key ruling by the Federal Court of Justice, of 12.7.2018, case reference: III ZR 183/17). Therefore, the digital circumstances of life will be appraised on the basis of the already existing provisions for the analogue world under German inheritance law.
Ownership of the physical storage medium will pass to the legal heirs while, in the case of external data, the legal heirs will enter into an agreement with the service provider. This is however not permitted in the case of highly personal rights or the testator’s data; the reason for this is that the basic assessment of the legislator is that the protection of personality rights will continue to have an effect.
Arrangements for your digital legacy – based on the general provisions under inheritance law – can therefore be planned via a power of attorney or in a will. It is therefore recommended that you consult a notary. Here, the grantor of the power of attorney should also agree a procedure for managing the digital legacy. Power of attorney solely for the digital area would be appropriate. The grantor of the power of attorney can even give specific instructions on how to deal with the data or a specific user relationship.
It is likewise possible to include an appropriate provision in a succession agreement or in a will. This could be a sensible course of action, in particular, if you wish to prevent certain persons from viewing sensitive data. For example, an executor could be instructed to erase certain information or terminate specific contractual relationships without seeing them previously. In this respect, it should be noted that the will as well as the power of attorney have to be handwritten, dated and signed. It is vital for the power of attorney to still be valid after death.
Handling by third parties
In some cases, the internet service providers have already put arrangements in place (although this is not normally the case). For example, Google has developed its own tool that helps users to specify, during their lifetimes, who should be able to access their data and when their accounts should be deleted. The extent of the arrangements that you will need for your legacy should not be underestimated. Depending on your usage, the accounts could include, among other things, own photos, calendars, (YouTube) videos or else payment data. Facebook provides the option to memorialise an account. Furthermore, a contact person for the legacy can be designated to take care of the memorialised account. Alternatively, it is possible to decide that the account should be permanently deleted. There are moreover companies who can manage the digital legacy for the benefit of the customer. Although, a major disadvantage of such external providers that manage the legacy is, on the one hand, that this involves costs and, on the other hand, that access is granted to – in some cases very personal – data.
Legally sound arrangements worth mentioning are the drawing up a power of attorney or making a will authenticated by a notary in each case and the associated filing of the information for the legal heirs. This can be done via a list with the login data on an encrypted and password-protected local data carrier (such as, e.g., a USB stick); in this case, the master password should be communicated to a person who you trust. In view of the high level of protection (confidentiality obligation), you might likewise consider consulting a notary in this respect.
Recommendation: The person who you trust, or possibly a notary can be given instructions in a digital power of attorney to hand over the ‘master password’ to particular people only under certain conditions. In addition, in the power of attorney, detailed information should be provided about which data should be deleted and which agreements should be cancelled and, moreover, what should happen to the profiles in social networks and the photos available on the net.