What heirs and those making provisions should know about the legal aspects of digital inheritance
A person's digital assets pass to their heirs upon their death. These include email accounts, social media accounts, cloud storage, online credits, and cryptocurrencies. In practice, however, access often fails due to missing login credentials and providers who deny access. Rogert & Ulbrich supports heirs and those planning for their estate in this regard. inheritance law in order to enforce access and to regulate the digital legacy in a legally compliant manner.
What constitutes a digital legacy?
There is no specific law on digital assets in Germany. The term describes all legal rights of a deceased person that are related to digital services and data. The scope is usually greater than relatives realize. Many contracts are exclusively online, bills arrive only by email, and assets are held by payment services or in digital wallets.
Typical components include:
- Communication: Email mailboxes, messenger services and the messages stored there.
- Social networks: Profiles on Facebook, Instagram, LinkedIn, X or TikTok including content and contacts.
- Storage and devices: Cloud services, photos, documents and data on smartphones, tablets and computers.
- Online wealth: Balances with payment services, online banking, accounts with neobrokers, crypto assets, bonus points and vouchers.
- Current contracts: Streaming subscriptions, software licenses, mobile phone contracts, insurance policies, and memberships that are managed online.
- Own content: Domains, websites, blogs, online shops, monetized channels and copyrighted works.
Without an overview of these items, assets remain undiscovered while costs continue to accrue. Are you, as an heir, lacking this overview? Have your claims reviewed and learn how to obtain the necessary information.
Legal situation: Heirs assume all digital contracts
Section 1922 of the German Civil Code (BGB) is decisive. Upon the death of the testator, the entire estate of the deceased passes to the heirs. This also includes contracts with providers of digital services. The heir becomes the contractual partner and has the same rights as the deceased, including the right to access the account.
The Federal Court of Justice clarified this in 2018 in a high-profile case concerning the Facebook account of a deceased teenager. The user agreement is inheritable, and the heirs are entitled to access the account, including private messages. Digital content is treated no differently than letters or diaries. Neither the confidentiality of telecommunications, nor the posthumous right of personality, nor data protection laws preclude this. The General Data Protection Regulation (GDPR) does not apply to the data of deceased persons anyway.
In a further ruling from 2020, the Federal Court of Justice clarified the scope of this right. It is insufficient for the provider to simply hand over a data carrier containing exported data to the heirs. The heirs must be able to navigate the account in the same way as the deceased. The only exception is active continued use, such as writing new posts. The legislature has adopted this line of reasoning: According to Section 4 of the German Telecommunications Data Protection Act (TDDDG), the confidentiality of telecommunications does not preclude the rights of the heirs against the provider.
Data on the deceased's own devices also falls into the estate. With ownership of the smartphone or computer, the files stored on it also pass to the heirs. If a provider denies access, citing data protection regulations or their terms of service, a legal review is advisable before deleting any data.
Typical problems for heirs: access, deadlines and liability
In practice, the problem rarely starts with the legal aspect, but rather with access. Heirs don't know all the accounts or the passwords. Many providers are based abroad, respond slowly, or demand proof that goes beyond what is necessary. Some platforms memorialize profiles, thereby blocking logins. The heirs' right to access remains unaffected.
The death certificate and a certificate of inheritance or a notarized will with the probate court's opening protocol usually serve as proof. If several people have become heirs, the claim belongs jointly to the community of heirs. This regularly leads to disputes when individual co-heirs do not want to disclose private messages.
Furthermore, there is the issue of liability. Heirs are liable for the deceased's debts according to § 1967 of the German Civil Code (BGB). Ongoing subscriptions and paid contracts do not automatically terminate upon death but must be canceled. Simultaneously, the deadline for disclaiming the inheritance begins: Anyone wishing to reject the inheritance generally has only six weeks from the date they become aware of the death and the grounds for their entitlement, according to § 1944 of the BGB. It is often only after checking an email inbox that the full extent of existing debts and contracts becomes apparent.
Third parties are also exploiting the situation. Orphaned accounts are a gateway for identity theft and Online fraud. The deadline for rejecting the application is running, even if you don't yet have access to the mailbox. Don't wait; clarify the situation early.
Crypto assets, online balances and digital content in inheritance cases
Digital assets are inheritable like cash or securities. Balances held with payment services, online accounts, and securities accounts pass to the heirs. Upon presentation of proof, the providers must provide information and make payments. In disputes with banks and payment service providers, the rules of [relevant legal provision] apply. Banking law.
Cryptocurrencies are particularly sensitive. If coins are held on an exchange or custodian, a claim exists against the provider. If the deceased held their holdings themselves, everything hinges on the private key or recovery phrase. Without this information, the holdings may legally belong to the heirs but still be practically inaccessible. If an exchange refuses payment, heirs should not accept this. Further information can be found at [link to relevant information]. Refused payouts by cryptocurrency exchanges.
Inherited crypto assets are also relevant for tax purposes. They are considered part of the estate and must be taken into account for inheritance tax purposes. Subsequent sales can have further tax consequences. Since the tax authorities are increasingly scrutinizing crypto transactions, heirs should thoroughly document their holdings. You can read more about this in the article. Tax office investigates crypto transactions.
The situation is different with purchased digital content such as ebooks, music, films, or games. Often, the user doesn't acquire ownership, but only a right of use. Many terms of service exclude transferability. Whether such clauses are legally valid depends on the individual case and the terms and conditions. Do you suspect there are crypto assets or balances in the estate, but can't access them? Secure devices and documents and have the claims reviewed.
Planning ahead: How to legally manage your digital legacy
Planning ahead saves your loved ones months of conflict. Planning ahead consists of two parts: practical documentation and legal arrangements. Both belong together.
- Inventory list: Keep track of all your accounts, contracts, wallets, and devices. A password manager makes this much easier.
- Access data: Store the master password and recovery phrases in a safe place, such as a bank safe deposit box or with a trusted person.
- Power of attorney: Grant a trusted person power of attorney that remains valid after your death and explicitly includes digital matters. This allows for immediate action, even without a certificate of inheritance.
- Testament: Define who receives which digital assets and what should happen to accounts. Deletion requests can be mandated as conditions.
- Executor of a will: According to § 2197 of the German Civil Code (BGB), you can appoint a person to handle your digital estate according to your instructions.
- Platform features: In addition, use the legacy contacts and inactivity settings provided by the service providers. These do not replace legal provisions regarding inheritance.
The form is important. According to § 2247 of the German Civil Code (BGB), a handwritten will must be entirely handwritten and signed. A file on a computer, an email, or a note on a smartphone is not a valid will. Passwords should also not be included in the will itself. It is opened after death and the relevant parties are notified. A reference to a separate, stored list is preferable.
Anyone wishing to protect the highly sensitive nature of certain content can stipulate that individual accounts be deleted unread. Without such a stipulation, heirs have full access. Do you want to amend your will to include your digital assets? Have the provision reviewed to ensure it will be legally sound in the event of your death.
Checklist: What heirs should do now
After a death, the order of events is crucial. Premature deletions destroy evidence and assets. Waiting too long costs money and deadlines.
- Secure devices: Keep your smartphone, computer and storage media safe and do not reset anything.
- Mailbox first: Gain access to the email account. Invoices, contract confirmations, and password resets are all sent there.
- Obtain evidence: Obtain death certificates and clarify whether a certificate of inheritance is required.
- Take inventory: List your accounts, subscriptions, balances, and wallets. Bank statements and credit card statements will provide clues.
- Contracts are organized: Cancel paid services and request credit.
- Check deadlines: Keep an eye on the rejection deadline if over-indebtedness seems possible.
Writing to the supplier with a deadline clarifies the situation and secures your evidence. If a supplier doesn't respond or refuses, you can enforce your claim in court. Still stuck? Get in touch and have your case assessed.
Rogert & Ulbrich: Your lawyers in inheritance law
Rogert & Ulbrich advises and represents clients nationwide in inheritance law and in adjacent legal areas such as data protection, banking law and Crypto law. Dr. Marco Rogert and Tobias Ulbrich We run a law firm with experience from over 40,000 cases handled. These areas of law are particularly intertwined when it comes to digital estate planning.
We enforce access and information rights against platforms, payment services, and cryptocurrency exchanges, both out of court and in court. We assist heirs with estate settlements and assess whether disclaiming an inheritance is advisable. For those planning ahead, we draft wills, powers of attorney, and executorship directives that explicitly address digital assets.
Is a provider denying you access, or do you want to make legally binding arrangements for your digital legacy? Get in touch and secure your rights. Or leave your data behind? Get in touch. contact and secure your claims.
