Digital assets in wills NZ refer to the inclusion of intangible personal property—such as cryptocurrencies, domain names, social media accounts, and online revenue streams—within a New Zealand estate plan. These assets are treated as property under NZ law, requiring specific clauses to ensure executors can legally access, transfer, or liquidate them during probate.
As our lives migrate online, the composition of the average New Zealand estate is shifting dramatically. Gone are the days when an executor’s primary duty was clearing out a physical home and distributing bank balances. Today, significant wealth and sentimental value are locked behind encryption keys, two-factor authentication, and cloud service agreements. Understanding how to handle digital assets in wills NZ is no longer optional for estate lawyers or responsible testators; it is a critical component of modern asset protection and liquidation.
Defining Digital Assets in the New Zealand Context
In the realm of New Zealand estate administration, digital assets encompass a broad spectrum of intangible property. While many associate the term strictly with cryptocurrency, the legal reality is far more expansive. For the purpose of a will and probate, a digital asset is any digital record or account that you own, or have the right to use.
These assets generally fall into three primary categories:
- Financial Assets: Cryptocurrencies (Bitcoin, Ethereum), Non-Fungible Tokens (NFTs), online betting accounts, PayPal or Wise balances, and income-generating affiliate websites.
- Sentimental Assets: Photos stored in the cloud (iCloud, Google Photos), email archives, social media accounts (Facebook, Instagram, LinkedIn), and personal blogs.
- Intellectual Property & Business Assets: Domain names, client lists stored in CRMs, proprietary software code, digital manuscripts, and monetized YouTube channels.
The Legal Status of Digital Assets in NZ Probate
New Zealand law is evolving to catch up with technology. The landmark case of Ruscoe v Cryptopia Limited (in Liquidation) [2020] NZHC 728 was pivotal. In this High Court judgment, it was confirmed that cryptocurrencies meet the definition of “property” under the Companies Act 1993. By extension, this precedent supports the view that digital assets are property for the purposes of the Administration Act 1969 and can be bequeathed in a will.
Property vs. Service Agreements
However, a major distinction exists between owning a digital file and having a license to access a service. When you “buy” a book on a Kindle or a song on iTunes, you are typically purchasing a non-transferable license to view that content, not the content itself. Upon death, these licenses often expire, meaning they cannot technically be passed to beneficiaries. This creates a complex landscape for estate lawyers where the value of the account might be inheritable, but the account itself may not be transferable under the provider’s Terms of Service (TOS).
Challenges for Estate Lawyers: Access vs. Privacy
The primary hurdle regarding digital assets in wills NZ is not ownership, but access. The Privacy Act 2020 and the Computer Crimes Act play roles here, but the biggest barriers are often the Terms of Service of US-based tech giants.
The Password Paradox
It is standard advice that you should never write passwords directly into a will. A will becomes a public document once probate is granted in New Zealand. If passwords are listed in the will, the security of those accounts is immediately compromised. Instead, lawyers must advise clients to use secure digital vaults or password managers, with the master access instructions held separately (e.g., with the lawyer or in a sealed letter of wishes).
Jurisdictional Friction
Even with a valid NZ Grant of Probate, an executor may struggle to get cooperation from companies like Google, Facebook, or Apple. These corporations are governed by US laws (such as the Stored Communications Act), which prioritize user privacy over foreign probate orders. This often leaves NZ executors in a difficult position where they have the legal right to the asset but no practical way to access it without a court order from the jurisdiction where the company is headquartered.
Legal Status of Domain Names in NZ
For many New Zealand businesses and investors, domain names (specifically .nz domains) represent significant asset value. Unlike social media accounts, domain names are more clearly defined as property that can be transferred.
Transferring .nz Domains
The Domain Name Commission (DNC) in New Zealand oversees the .nz registry. When a registrant passes away, the domain name license does not automatically terminate. Instead, it becomes part of the estate. Executors must contact the domain registrar (the company where the domain was bought) and provide:
- A copy of the Death Certificate.
- The Grant of Probate or Letters of Administration.
- Proof of the executor’s identity.
Failure to maintain the registration fees during the probate period can result in the domain expiring and being released back to the public pool, potentially losing thousands of dollars in value. This is a critical risk area for digital asset liquidation.
Identifying Hidden Digital Assets and Revenue Streams
One of the unique characteristics of digital assets is their invisibility. Unlike a house or a car, a Bitcoin wallet or an affiliate marketing account has no physical footprint. Executors often face the daunting task of “digital archaeology.”
How to Locate Hidden Assets
Executors should look for the following indicators to identify potential assets:
- Email Analysis: The deceased’s primary email account is the key. Look for registration confirmations, monthly invoices from SaaS providers, or dividend notifications.
- Bank Statement Review: Look for inflows from payment processors like Stripe, PayPal, or Wise, and outflows to hosting companies, domain registrars, or crypto exchanges (e.g., EasyCrypto, Binance).
- Browser History & Bookmarks: These often reveal frequent visits to investment dashboards or backend login pages for websites.
- Authenticator Apps: If the deceased’s phone is accessible, open Google Authenticator or Authy. The list of accounts requiring 2FA is a roadmap to their most valuable digital holdings.
Protecting Intellectual Property Post-Mortem
For content creators, authors, and software developers, the digital asset is not just the file, but the Intellectual Property (IP) rights attached to it. Under the Copyright Act 1994, copyright in New Zealand generally lasts for the life of the author plus 50 years. This means revenue streams from digital books, music, or software can continue to benefit heirs for decades.
Steps to Secure IP Revenue
Executors must move quickly to secure the accounts that receive royalties. For example, if the deceased was an Amazon KDP author, the executor needs to notify Amazon to update the tax and banking information to that of the Estate or the beneficiary. Failure to do so can trigger fraud alerts and account freezes, effectively cutting off the income stream.
Guidance for Executors and Family Members
If you are named as an executor in a will that involves digital assets, you have a fiduciary duty to maximize the value of the estate, which includes digital liquidation.
Step-by-Step Administration Process
- Secure the Hardware: Physically secure laptops, smartphones, and external hard drives immediately. Do not wipe any devices.
- Inventory Creation: Create a spreadsheet of all identified digital assets, categorizing them by type (Financial, Sentimental, Business).
- Valuation: For cryptocurrency and revenue-generating websites, you may need a specialist valuer or a digital asset broker to determine fair market value for probate application purposes.
- Consolidation: Where possible, move funds to a consolidated estate account. For crypto, this means transferring to a secure cold wallet controlled by the executor or liquidating to NZD via a compliant local exchange.
- Deletion vs. Memorialization: For social media, decide whether to delete the account or memorialize it (e.g., Facebook’s Legacy Contact feature). This should be guided by the family’s wishes or the will’s instructions.
Frequently Asked Questions
Can I write my passwords directly in my will in NZ?
No, you should never write passwords in your will. In New Zealand, a will becomes a public document after probate is granted. If passwords are included, anyone can view them, compromising your accounts. Instead, use a password manager and leave instructions on how to access the master password in a separate, sealed Letter of Wishes.
What happens to my KiwiSaver if I die?
While KiwiSaver is managed digitally, it is treated as a financial asset. The balance is paid to your estate. If the balance is under $15,000, it may be released without probate under the Administration Act 1969. For amounts over this, your executor must apply for probate to access and distribute the funds.
Is cryptocurrency taxable in a deceased estate NZ?
Generally, inheritance is not taxed in New Zealand. However, if the estate sells the cryptocurrency to distribute cash to beneficiaries, any gain in value between the date of death and the date of sale might be subject to tax, depending on the intent of the original holder and current IRD guidance. Professional tax advice is recommended.
How do I access a deceased person’s email account in NZ?
Accessing a deceased person’s email is difficult due to privacy laws. You generally cannot just “log in” even if you are the executor, as this may breach Terms of Service. You must contact the provider (e.g., Google, Microsoft) with the Death Certificate and Grant of Probate to request access or a copy of the data.
Do I need a specialist ‘Digital Executor’?
New Zealand law does not formally recognize a separate “digital executor” distinct from the main executor. However, you can appoint a specific person in your will to handle digital matters (a literary executor or digital advisor) who works under the authority of the primary executor to manage technical aspects.
Can I leave my airline miles or loyalty points to someone?
This depends entirely on the program’s Terms and Conditions. Some programs (like Air New Zealand Airpoints) may allow transfers to a beneficiary upon death, while others strictly terminate the points when the account holder dies. Check the specific policy of the loyalty program.
