From Cloud 9 To 6 Feet Under: Dealing With Digital Assets When A Business Owner Dies

Issue 44

The sudden death of a business partner, co-director or sole trader can be very difficult to deal with. The emotional strain, loss of continuity and uncertainty over the future can make the ongoing running of the business both daunting and unmanageable.

What happens to the deceased’s interest in the business will generally depend on the terms of their Will; be it shares in a company, the partnership interest or the assets of a sole trader. However, digital assets can cause a particular set of issues, especially when they are used by or as part of the business.

Whilst such things as software licence agreements and online accounts entered into by a company or partnership (on the assumption that there is an effective Partnership Agreement in place for the latter) should continue unaffected, continued access and use of such assets for the Executor of a sole trader could be problematic. This would not only depend on whether the Executor has the information to gain access to the assets (namely usernames and passwords), but also the terms of the agreement entered into and whether third party access and usage is permitted.

Where technology is more bespoke, for example designed and developed by the deceased, issues around ownership can arise if clear agreements and protections were not put in place during lifetime. Such disputes can also mean the business cannot use the technology whilst the dispute is ongoing, which can lead to problems in the day to day workings of the business.

It is common for more and more businesses to use social media to promote products and services. If this has been done using online platforms in the deceased’s personal name, again, access to such platforms could be precluded if the username and passwords are unknown to the business. Whilst online content such as videos and blogposts may benefit from the protection of copyright, the terms of use of the online platforms may prohibit their assignment to third parties. As many online platforms are based overseas, jurisdictional issues may also arise when trying to obtain access.

For the deceased’s estate, the ownership of digital assets used for business purposes also has implications for Inheritance Tax purposes. If digital assets are owned by a company or partnership which operates a trading business, then they should benefit from Business Property Relief at the rate of 100%. This means the value of the digital asset is completely exempt from Inheritance Tax. However, if digital assets are owned by the deceased and used by the business, then the rate of relief available may be limited to 50%. There could also be issues in valuing such assets and determining who they pass to under the estate.

At Hay & Kilner, our multidisciplinary Information Technology and Intellectual Property teams can work with business owners and entrepreneurs at every stage to ensure all necessary agreements, contracts, Deeds and documents are in place to protect the business, and those with an interest in it, both during the lifetime of the business and of the individuals behind it. Our experienced Private Client team can also work with executors and administrators to ensure estates are administered efficiently

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