Digital inheritance in Italy

If you are seeking to understand what makes up a digital patrimony, our team of lawyers will explain to you that digital assets are divided into two main categories:

• Digital assets with patrimonial content: they possess economic value or are used for an economic objective. Among these we can include digital currencies (e.g. Bitcoin), assets purchased online (music, films, software), work projects or writings not yet published.
• Digital assets with non-patrimonial or personal content: they include e-mails, photographs, personal writings, posts on social networks and private chats.

The legislative instruments to regulate the succession of inheritance digital patrimony are still little clear. Therefore, the informational support that Boschetti Studio Legale can provide you is fundamental to trace the cardinal points of the matter, which are:

• The digital inheritance patrimony is composed of heterogeneous dematerialised assets;
• Digital assets object of the succession can be transmitted mortis causa, on a par with every available right;
• Digital assets are encrypted by access keys known only to the deceased.

As regards digital assets with specific and objective patrimonial content (which represent a very small part of the category of digital assets), there is no doubt that these will be subject to the ordinary succession rules. Among these assets we can count all digital currencies (Bitcoin for example), but also all assets purchased online (music, books, films, programs, software protected by copyright, digital images, projects of a professional, videos of a filmmaker, books not yet edited of a writer, etc.).

The regulation of digital assets of not strictly patrimonial nature or with mixed content presents greater problems. Reference is made in particular to correspondence (exchanged via e-mail or chat WhatsApp, SMS etc.), to photographic portraits and, in general, to all those materials characterised by individual, personal and affective nature, among which posts on social networks.

In the absence of real regulation regarding the assets in question, the Legge n. 633 del 1941 sul Diritto d’Autore would seem applicable to them.

It is however currently almost impossible to categorise a post on social networks, or the contents of the deceased’s account, using the schemes provided for by the rules in force (think, as a mere example, of the social profile of an influencer in the context of which the boundary between personal nature and patrimonial exploitation of publications is very thin).

That said, in addition to the mentioned criticalities on the management of the digital compendium from an economic point of view, the further moral problem linked to the same theme is not negligible. The processing of the bereavement of a loved one who was active on social networks plays a crucial role: in the absence of provisions or interventions by the heirs, in fact, there is the risk that the online profiles of the deceased person continue to exist despite that subject no longer being alive, with the obvious consequences on the level of bereavement processing and exposure to the public of very private contents.

In the present regulatory void, awaiting the legislative regulation of this matter, which can no longer be neglected, the most appropriate suggestion that we at Boschetti Studio Legale offer to our clients is to expressly establish what one wishes to happen to one’s digital patrimony through a writing or, better still, a will, in which precise indications will have to be provided regarding the composition and the fate of one’s digital patrimony in case of death (e.g. “completely cancel the profile”, “keep as commemorative page”, “Inform of my death through a brief message” etc.)

In the face of this uncertain legal framework, the observations made so far make evident the fact that planning during life the succession of one’s digital patrimony has the same importance as succession planning of traditional patrimony. The digital patrimony can be constituted by economically relevant assets, or by personal contents, images, videos, diaries, e-mails of which there is no perception of their affective value or that perhaps could have an intrinsic economic value.

Below, Boschetti Studio Legale has outlined for you some useful suggestions for the management of inheritance patrimony:

• The online current account is the extension of a standard or traditional current account and the same rules apply;
• In the case of “cryptocurrencies” or “virtual currencies” (among which the most known is the bit coin) it is appropriate to:
• keep the access data on a traditional support such as, for example, a sheet of paper and keep it in a safe place.
• keep the access data on a normal word document accessible from a device in one’s possession, which it is possible to leave to one’s heirs;
• rely on an online intermediary.

In case of inheritance constituted by personal digital assets:

1. Use the services offered by the account manager, as for example happens with Facebook;
2. Entrust to a person of trust the access credentials, username and password, with the related instructions on what to do in case of death. In case over time the credentials are changed, as is good security practice, it is necessary to remember to update the instructions and notify the designated person.

To avoid continuous updates of the instructions to the designated person deriving from the necessity to update passwords for security reasons, some online services allow the automatic updating of stored passwords. However, even in this case, it can happen that these sites cease to exist.

For the transmission of digital inheritance, our law firm has positively resorted also to the legal instrument of the mandato post mortem, advising clients to provide for an assignment unilaterally entrusted in the will, which authorises the mandatary to recover the credentials from the place or from the depositary indicated by the mandator-testator, in order to fulfil the wishes of the deceased.

As regards the possibility of disposing with a deed inter vivos of one’s access credentials, for the time when one will have ceased to live, the spaces of action are very restricted due to the prohibition of inheritance pacts, for which reason it is not advised to entangle in this matter without the help of a competent lawyer.

In fact, the subject cannot during life leave the credentials (or expressly the digital resource protected by the credentials) providing that such bequest will produce effects starting from their death, since this would constitute an institutive inheritance pact, void by law.

The same conclusions are reached should a mandato mortis causa be configured, that is to say an assignment to transfer the credentials (or expressly the digital resource protected by the credentials) entrusted to a third party, to be executed at the death of the mandator.

Therefore, the only activity that the subject can validly carry out is to confer a mandato post mortem exequendum, that is to say an assignment having as object the carrying out of a merely material activity of delivery of the credentials, without this importing disposition of the resource protected by the access credentials.

Thus, while the subject is alive, they cannot, neither leave the digital resource for the time in which they will have ceased to live (Tizio agrees with Caio to leave him their internet site at the moment of death), nor entrust the assignment to transfer the digital resource to an already indicated person (Tizio agrees with Mevio so that the latter transfers, at Tizio’s death, to Caio the internet site), since this would constitute a forbidden inheritance pact. It is only possible to entrust the assignment to deliver the access credentials to the person who will be indicated in the will (Tizio agrees with Mevio, so that the latter, at Tizio’s death, delivers the password to Tizio’s successor or to the persons that Tizio will indicate in his will), since said mandato post mortem exequendum, having as object a mere material activity not dispositive of patrimonial rights subject to succession, does not conflict with the prohibition of inheritance pacts.

Still speaking of digital inheritance, the matter complicates a little if we speak of our social profiles present on platforms, or of e-mail services, which usually are not always subject to the legal system of the subscriber.

Most of the time these social networks are subject to Common Law and most of the time those who use them are not the owner of the profile they have created, but are only its user. In some cases, instead, the general conditions of the service provide that in case of death of the holder their e-mail box be destroyed/cancelled, with the related loss of its content, this is the case of the Yahoo platform.

With the experience matured by Boschetti Studio Legale, today we are able, among other things, to orient ourselves among the policies of the various e-mail services, to explain to you the solutions adopted which among themselves are very different.

Google offers users the possibility to indicate to whom access to the account can be allowed and to authorise its cancellation through the function “Inactive account management”. Google prefers to adopt such policy in order to help the family members of the deceased to recover some contents present within the account and to decide whether to keep it active or cancel it. Always however respecting the privacy of the deceased and therefore without ever providing the access data.

Facebook and Instagram instead give the possibility to transform the profile page of the person who is no longer there into a commemorative page, inserting a “heir contact” who can operate on it with notable limitations.

Different is the case for online gaming platforms (online casinos or similar, YouTube, Twitch) in which an exchange of money takes place between the user and the provider, here the testator can bind the legal relationship that they have with the provider that makes the platform available.

On these platforms the debit and credit of the sums of money takes place on a current account or on a credit card, therefore the testator can bind the right of ownership on a precise sum of money.

Lately many IT companies, among the most known, Facebook and Apple, are introducing the possibility of designating a digital heir, that is to say that subject who can have access to the digital data of the deceased.

But who is the digital heir? What are their rights and obligations?

Boschetti Studio Legale offers you some food for thought trying to identify the most relevant aspects from the legal point of view.

Given that the same term “digital” does not have in the codified regulation in force express definitions or provisions, a fairly univocal concept of digital inheritance has nevertheless consolidated: the succession of one’s digital data collected during life to an heir.

Providing for and defining the figure of the “digital heir” therefore becomes necessary on one hand to protect our digital patrimony, on the other to avoid that third parties can grab such data for lucrative purposes.

Express regulation has been offered only by some US states.

In Italian regulation we trace some regulatory provisions that can help us to identify the applicable discipline. The Codice Privacy, which specifies how the data of the deceased person can be acquired by an heir or family member provided that the deceased has not expressly forbidden their transmission to those successors, gives us therefore an initial certainty: the “digital data” survives death. The heir will be able to access the digital patrimony of the deceased to obtain it, and thus make their own the “digital riches” relating to the deceased or simply cancel them.

Upon acceptance of a software, of the smart phone, or of our personal computer, or upon deposit in “cloud” of our data, we in fact stipulate to all legal effects a contract in which, under certain conditions and often after the payment of sums of money, we buy a memory space in “server” managed by legal subjects, who become holders and custodians of the data that we entrust to them.

The custodian with whom we deposit our digital data has the obligation “not to use the deposited thing and not to give it in deposit to others without the consent of the depositor”, as well as the obligation to return it “to the depositor or to the person indicated to receive it”.

The legitimate or testamentary heir, in the absence of different express and formal provision of the holder of the right, will therefore be able to freely invoke access to the digital data.

In succession scope the determination of the value of digital data will then have fundamental importance: most disputes are in fact based on alleged harm to forced heirship and/or acts in violation of it, such as for example legacies.

By analogy we can also provide for the application of some institutions provided for by the Codice civile:

• will: it is necessary however that the appointment of the digital heir take place with a deed having written form and at least signed by the testator;
• mandato post mortem: same formal obligations necessary for the will with the further limit that the rights relating to the digital thing object of succession would not be transferred either: thus if for example I were to transfer a password through a mandate, my successor could not however make their own the protected material, which by absurdity would remain external to the holder of the password.
• legacy: instrument that allows the transmission of one or more digital data (legacy of specific thing). Unlike the mandate, the legatee, that is to say the one who receives the legacy can also make their own the rights relating to the thing object of succession (that is to say the material protected by a password given in legacy). It is also fundamental to understand whether the qualified holder and custodian has the right to dispose of and use the digital data of the deceased. The principle of legal certainty and of free circulation of assets, which inspires all the most advanced legal systems, suggests that, in the absence of an adequate claim by entitled persons or those having title, after a determined lapse of time (lapsing effects of the right) the qualified holder, custodian, will be free to dispose of the data (also destroying them).