An estate no longer consists only of real property, bank accounts, and movables. Many people now hold assets and rights with no physical existence: commercial social media accounts generating income, digital libraries, domain names, balances in electronic wallets, and software projects. When the owner dies, questions arise that estates have not traditionally faced. Do these accounts pass to the heirs? How can they be accessed if no passwords were left? What of the private correspondence they contain? This article addresses these questions under the general rules of Kuwaiti law, since no dedicated legislation yet governs them.
What Forms Part of the Estate
The governing rule is that an estate comprises the deceased's transmissible economic rights, and the distinction follows from this:
- Assets of financial value: balances in electronic wallets, revenues of commercial accounts, valuable domain names, and the economic rights in digital works. These form part of the estate and pass to the heirs.
- Intellectual property: the economic rights to exploit a work pass to the heirs for the period the law prescribes, while moral rights remain attached to the author's person and do not pass, though heirs may protect them against infringement.
- Rights attached to the person: such as rights to name, image, and private life. These are not inherited as economic rights, though heirs may sue for an infringement affecting their own feelings and standing.
- Personal licences: many digital subscriptions and software licences are granted to the individual and terminate on death without passing to the heirs.
The Obstacle of Platform Terms
The greatest practical challenge here is contractual rather than purely legal, since the relationship between user and platform is governed by terms of service accepted on registration:
- Non-transferability: most platform terms provide that the account is personal and non-assignable and non-inheritable, and that the user holds a licence to use rather than ownership of the account itself.
- Post-mortem policies: some platforms offer defined options such as memorialising the account, designating a legacy contact, or deleting the account at the heirs' request.
- Jurisdiction and applicable law: these terms are usually governed by foreign law and foreign courts, complicating any direct claim.
- An essential distinction: a platform may decline to hand over the account itself, but this does not extinguish the heirs' right to the financial value derived from it, such as accrued revenues or an existing balance.
Commercial Accounts and Digital Income
Income-generating accounts are the most contentious situation, and their elements should be distinguished:
- The business activity: where the account is tied to a commercial licence or a legal entity, it is the entity and its shares that are inherited rather than the account in isolation.
- Existing contracts: advertising and sponsorship agreements concluded before death are dealt with under their own terms, and some terminate on the death of a party where personal performance was material.
- Unpaid entitlements: sums accrued before death and not yet received form part of the estate and may be claimed by the heirs.
- Continued operation: heirs continuing to operate the account in the deceased's name may raise issues of misleading the public and impersonation. Clear disclosure of the change of operator is advisable.
Privacy and Private Correspondence
Here the law faces a delicate balance between the heirs' rights in the estate and the confidentiality of correspondence:
- The heirs' right attaches to financial value and does not by its nature extend to reading private conversations merely by virtue of their status.
- Correspondence involves other living parties with an independent right to confidentiality in what they sent, which cannot be overridden by the transfer of an account.
- Access may be justified where judicially necessary, such as proving a debt or clarifying the circumstances of a death, by authorisation of the competent authority and within the narrowest limits.
- Publishing the deceased's private content without a basis may give rise to liability towards those the information concerns.
Digital Estate Planning
The most effective solution to all these difficulties is advance preparation, which can be organised through several tools:
- Inventory of digital assets: a written list of accounts and valuable assets and where access data is kept, without including passwords in the document itself.
- Will: a will may address the disposition of digital assets within the limits the law permits, observing the restrictions on bequests to an heir and on the permitted proportion.
- Platform tools: activating legacy contact or inactive account options where available, the fastest practical route.
- Secure custody of access data: through a trusted means known to a person of confidence or under a documented arrangement with a competent body.
- Encrypted assets: requiring particular care, since loss of private keys means permanent loss of the asset with no legal process capable of recovering it.
Practical Steps for Heirs
- Begin by obtaining the death certificate and the declaration of heirs, the foundational documents for any claim.
- Contact platforms through their official channels, attaching translated and legalised documents where required.
- Do not attempt to access accounts by unlawful means, which may constitute unauthorised access even where you are an heir.
- Document every communication with the platform, as this may be needed to establish inability to obtain access before a court.
- Review bank statements for recurring subscriptions or transfers indicating digital assets you were unaware of.
- Instruct a lawyer where assets of significant value are involved or where heirs disagree over operating an account.
Digital inheritance is a developing field whose rules are still taking shape, and advance planning is far more valuable than subsequent litigation. Yamnak Law Firm advises on organising digital assets, drafting wills, and preparing estate inventories, and represents heirs in claims for financial rights connected to online accounts and platforms.
