A generation ago, estate planning centred on homes, superannuation and personal effects. Today, a person’s most valuable asset may not sit in a safe or a filing cabinet, it may sit behind a password.

From monetised YouTube channels to cryptocurrency wallets and brand-driven Instagram accounts, digital assets are no longer peripheral to an estate. For some Australians, they are the estate.

A recent survey conducted by the NSW Trustee and Guardian revealed:

·        9 out of 10 Australians have a social media account;

·        83% have not discussed with their loved ones what they want to happen to their accounts when they die;

·        83% of Australians who have a will have not decided what they want to do with their social media accounts after their death.

The global creator economy has transformed social media from pastime to profession. Platforms such as YouTube, TikTok and Instagram now support full-time careers through advertising revenue, sponsorships and affiliate marketing. Intellectual property including videos, podcasts, blogs and digital courses can generate ongoing income long after publication.

Under Australian law, copyright in original works generally forms part of a deceased’s estate and can subsist for 70 years after death (see Copyright Act 1968 (Cth), s 33). That means a monetised YouTube channel or online course library may continue to produce income for decades.

But here lies the tension: while copyright may be transmissible property, the account through which it is monetised is often governed by a contract that restricts transfer. Many platforms operate on non-transferable licence terms that technically terminate on death. The legal asset and the practical control mechanism are not always aligned.

Professor Prue Vines of UNSW has observed that succession law has “fallen behind” the realities of digital life. It has long been assumed that digital assets can be dealt with “the same way we have dealt with traditional assets”, but that assumption is often incorrect.

Cryptocurrency
Digital wealth is not limited to content. Cryptocurrency holdings, including Bitcoin and Ethereum, are increasingly common in Australian portfolios.

The Australian Taxation Office has made clear that cryptocurrency is not “money” but a CGT asset (see TD 2014/25 and TD 2014/26 under the Income Tax Assessment Act 1997 (Cth)). This means:

• It forms part of the estate.

• Disposal can trigger capital gains tax consequences.

• Its value at date of death is relevant for administration.

However, cryptocurrency introduces a uniquely modern risk: total loss through inaccessibility. Without a private key or seed phrase, an executor cannot access the asset. There is usually no “reset password” function. Globally, significant amounts of cryptocurrency are estimated to be permanently inaccessible due to lost keys, a cautionary tale for estate planning.

Estimates suggest that roughly 2.3 million to 4 million BTC is permanently inaccessible, accounting for roughly 11% to 20% of the total supply. With Bitcoin often trading above $100,000, this represents hundreds of billions of dollars in lost wealth. 

In practice, the legal entitlement of a beneficiary is meaningless if the executor cannot locate and unlock the wallet.

The Regulatory Vacuum in Australia
Despite the scale of digital integration in modern life, there is currently no specific Australian legislation comprehensively regulating access to digital assets on death.

In 2018, then NSW Attorney General Mark Speakman referred the issue to the NSW Law Reform Commission, noting that families were being left to navigate “bureaucratic hurdles and legal uncertainty” at a time of grief.

In its March 2020 report, the Commission recommended:

• A statutory digital access scheme allowing authorised persons limited access to digital records;

• Amendments to succession law to clarify its application to digital property;

• Liability protections for custodians and authorised persons acting in good faith.

The report was tabled in Parliament, yet the legislative position remains unsettled.

As Associate Professor Yeslam Al-Saggaf has observed, ownership of social media data is itself conceptually unclear: users may control access to their data, but ownership remains complex and platform-dependent.

Until reform occurs, access is largely dictated by private contracts, not statute.

Platform Policies: A Patchwork of Rules
Major technology platforms each take a different approach:

Apple
Introduced “Legacy Contacts”, allowing users to nominate trusted individuals who can access account data upon death. The contact receives an access key and must provide a death certificate. Access is time-limited (three years).

Google
Through its Inactive Account Manager, users can set an inactivity period (three to 18 months). After that period, nominated contacts (up to 10) may receive selected data, or the account may be deleted.

Facebook
Offers a legacy contact who may manage a memorialised account (posting tributes, changing profile photos, or requesting deletion). However, private messages remain inaccessible.

Instagram
Allows memorialisation or deletion but does not provide a legacy contact feature. Only immediate family or lawyers may request deletion.

Microsoft
Does not permit nomination of an access contact. Accounts are generally deleted after two years of inactivity.

Twitter and LinkedIn
Do not offer legacy contact systems. Authorised persons may request deletion upon proof of death.

The practical consequence is fragmentation. Each platform operates according to its own contractual framework. Executors must navigate multiple private systems, often governed by foreign law.

Some individuals attempt to resolve this uncertainty by sharing passwords during their lifetime. However:

• Many platform terms prohibit password sharing.

• Unauthorised access may expose individuals to potential criminal liability.

• Cybersecurity risks increase significantly.

The NSW Law Reform Commission cautioned that even well-intentioned access could trigger legal exposure without statutory protection.

Estate planning must therefore balance accessibility with security, and legality.

Given the absence of a comprehensive statutory regime, effective planning typically involves:

• A clearly drafted will authorising executors to access and manage digital assets;

• Consideration of appointing a technologically competent executor or digital co-executor;

• A secure, regularly updated inventory of accounts and access mechanisms stored separately from the will;

• Instructions regarding deletion, memorialisation or commercial continuation;

• Consideration of testamentary trusts where ongoing revenue or vulnerable beneficiaries are involved.

Importantly, passwords should never be written into a will, as a will becomes public once probate is granted.

In today’s economy, a person’s most valuable asset may exist entirely online. A YouTube archive generating advertising income. A cryptocurrency portfolio. A subscription-based digital business. Or intellectual property with enduring value.

The intersection between contract law, succession law and platform governance remains unsettled. Until legislative reform provides clarity, proactive structuring is essential.

Digital assets are no longer a novelty. They are part of modern wealth, and modern legacy.

Contact us today to discuss how your digital assets can be properly structured, protected and integrated into your estate plan. Together, we can create a strategy that safeguards both your commercial interests and your family’s peace of mind.