Anyone who wants to plan their estate with foresight often thinks about their home, their business, or the securities, jewelry, and assets they’ve acquired. Rarely do thoughts turn to the digital legacy one leaves behind. Yet, on average, Swiss people spend 5.7 hours a day online—a figure projected for the year 2025.[1] Email accounts, social media profiles, cloud storage filled with family photos, and digital assets such as cryptocurrencies have long been part of everyday life—which is why one’s digital estate should not be left to chance.

Death is analog, but our legacy has long been digital. For surviving family members, the complex “digital estate” often poses an insurmountable hurdle when login credentials are missing and global tech companies deny access. As your specialists in digital, data, and estate law in Central Switzerland, we shed light on the legal situation and show you how proactive planning can ensure that your digital legacy is managed according to your wishes and that your loved ones are spared unnecessary burdens.

THE LEGAL BACKGROUND: UNIVERSAL SUCCESSION MEETS THE DIGITAL REALITY

In principle, the legal situation in Switzerland is clear: in accordance with the principle of universal succession (Art. 560(1) of the Swiss Civil Code), upon the testator’s death, the heirs automatically and in their entirety succeed to all of the testator’s rights and obligations. This also applies to the digital estate:

• Hardware and local data: Ownership of devices such as laptops or smartphones passes to the heirs. The data stored on them (photos, documents) is regarded as an integral part of the devices and shares the same legal status.
• Contractual relationships: Contracts for subscriptions (e.g. Netflix), online services and cloud storage are also transferred to the heirs. They therefore also inherit the contractual rights, such as the right to access the data – and, unless otherwise stipulated in the contract, the obligation to pay also continues.
• Intellectual property rights: The rights to exploit copyright-protected works (e.g. photographs, texts, software code) are inheritable (Art. 16 of the Swiss Copyright Act).

In practice, however, enforcing these rights proves to be a complex and protracted process. The heirs face a number of obstacles:

1. General Terms and Conditions (GTC): Many international providers (particularly those from the USA) stipulate in their GTC that accounts are personal and non-transferable. The validity of such clauses is highly controversial under Swiss law. It can be assumed that Swiss inheritance law takes precedence over the providers’ contract law, similar to the ruling of the German Federal Court of Justice. However, enforcing these rights remains a complex process, particularly in relation to foreign jurisdictions.
2. Data protection and protection of personality rights: Providers often refuse access on the grounds of protecting the privacy of the deceased (post-mortem protection of personality rights, Art. 28 of the Swiss Civil Code) and that of their communication partners. The Federal Supreme Court has already held that a right to information under data protection law does not automatically pass to heirs where the sole purpose is to pursue claims under inheritance law. It remains to be seen whether post-mortem protection of personality rights is sufficient to enable surviving relatives to settle digital matters where the deceased has not made any arrangements.
3. Telecommunications secrecy: Email providers, in particular, are bound by strict telecommunications secrecy. The disclosure of the content of communications to third parties – including heirs – is a criminal offence and presents a significant obstacle.
4. Risk to heirs: If heirs attempt to gain access using guessed or discovered passwords, they risk prosecution for unauthorised access to a data-processing system (Art. 143bis of the Swiss Criminal Code). The Federal Supreme Court has made this unequivocally clear in a landmark ruling (BGE 145 IV 185) – at least with regard to spouses living apart.

THE SPECIAL CASE OF CRYPTOCURRENCIES IN AN ESTATE: WHERE CODE TAKES PRECEDENCE OVER THE LAW

Cryptocurrencies such as Bitcoin are legally classified as (intangible) assets and therefore form part of the estate. The key challenge here, however, is purely technical in nature: control over the assets depends exclusively on possession of the private key. Without this key, the assets are effectively and irretrievably lost to the heirs. A ‘zero-error tolerance’ applies here. If the cryptocurrencies are held on a trading platform, the contractual issues outlined above still apply.

If digital assets such as Bitcoin or Ether form part of the intended estate, this raises further complex questions regarding their safeguarding, valuation and distribution. What happens to crypto assets in the event of incapacity? How is access guaranteed for the heirs, and according to what rules is valuation carried out in a volatile market environment?

STRATEGIC PLANNING: HOW TO TAKE CONTROL

Given this complex situation, a proactive approach is essential. We recommend the following strategic steps:

1. Getting organised: The digital inventory

Draw up a comprehensive list of your digital platforms and assets: email accounts, social media profiles, cloud services, online subscriptions, domain names and crypto wallets. Make a note of the usernames, but keep the passwords in a separate, secure place (e.g. in a sealed envelope with a trusted person or a notary). It is important that a trusted person – or the executor (see point 3 below) – knows where this information can be found.

2. Facilitating access: Making use of technical and contractual measures

Many major providers (Apple, Google, Facebook/Meta) offer the option of appointing an “estate contact“. Following your death and upon presentation of a death certificate, this person will be granted limited access to back up your data or manage your account. Making this contractual arrangement whilst you are still alive is extremely effective and circumvents many obstacles under inheritance law. In addition, password managers with an ‘emergency access’ or ‘inheritance’ feature can be used.

A simple list of instructions is not sufficient. Your wishes must be set out in a legally valid form, namely in a handwritten will (Art. 505 of the Swiss Civil Code) or a notarised inheritance contract. In these documents, you should:

3. Ensuring legal certainty: provisions in a will

• Appoint an executor: Appoint an executor (Art. 517 et seq. of the Swiss Civil Code) and explicitly grant them digital powers. One possible wording is: “The executor is expressly instructed and authorised to review, manage and settle my digital estate. This includes, in particular, the authority to access all my online accounts, back up data, set profiles to memorialised status or delete them, terminate ongoing contracts, and secure and dispose of digital assets, including crypto-based assets.”
• Give clear instructions: Specify what is to happen to specific data or accounts (e.g. “My photo database should go to my daughter”, “My LinkedIn profile is to be deleted”, “My private emails are to be deleted without being read’). This helps to avoid conflicts amongst the heirs and to ensure that post-mortem privacy is respected.

4. Prevention rather than aftercare: the advance care directive to safeguard the ability to act in the event of incapacity

Last but not least, when planning ahead, it is important to bear in mind that a person may lose their capacity to make sound judgements – and thus their legal capacity – even before their death. If a loss of capacity occurs as a result of illness or an accident, and no arrangements have been made, the Child and Adult Protection Authority (KESB) will appoint a guardian to manage the person’s personal and financial affairs. Particularly in the case of complex digital assets, there is a risk here that this guardian may not possess the specific technical expertise required to manage cryptocurrencies adequately; or, in the worst-case scenario, access to the cryptocurrency may be lost forever. It therefore makes sense to appoint a competent trusted person or specialist who is familiar with how cryptocurrencies work.

To ensure this remains valid in the event of legal incapacity, a lasting power of attorney must be drawn up in accordance with Art. 360 et seq. of the Swiss Civil Code. This must be drawn up in the testator’s own hand – i.e. entirely by hand from start to finish – or be notarised. To ensure that a lasting power of attorney can be implemented, the civil registry office will, upon application, make an entry in its central database, including the location where the document is held.

THE CONTEXT IN THE CANTON OF LUCERNE

In the canton of Lucerne, the competent probate authority draws up an inventory ex officio following a death (§ 72 EGZGB LU). Clear provisions in a will and the appointment of a competent executor simplify this process considerably and ensure that your instructions are implemented swiftly and correctly in the digital realm, and that digital assets are not lost – or remain on the internet indefinitely.

CONCLUSION – DON’T LEAVE YOUR DIGITAL LEGACY TO CHANCE

Digital inheritance is not a technical issue, but a strategic one. Relying solely on the law often leads to a dead end. Only a combination of careful inventory-taking, making use of technical precautionary measures, and precise, legally valid testamentary provisions can guarantee that your digital sovereignty is preserved and your loved ones are protected. 

Do you have any questions, or would you like to make professional arrangements for your digital estate? We are here to support you as trusted partners. Please contact us to arrange a consultation.

[1] https://www.srf.ch/news/schweiz/studie-zur-internetnutzung-schweizer-verbringen-im-schnitt-einen-viertel-des-tages-im-netz.