What is the current legislation surrounding Digital Assets post death?

There’s no Act of Parliament that specifically addresses what happens to your personal data after your death in the UK but there are existing legal rules and precedents to navigate when it comes to issues around it. To address the lack of a specific Act, the Digital Devices (Access for Next of Kin) Bill was introduced. Essentially, the Bill seeks a right of access to be given to loved ones for the management of a deceased’s assets and the default position would be that the next of kin would automatically gain access to the contents of the digital platforms and to codify the contents of digital assets as a person’s possession. However, given the Bill has been sitting at second reading since May 2022, it is uncertain when it will become UK law.

What can I do to plan ahead?

While a document detailing your digital wishes isn’t legally binding like a traditional Will, it can be invaluable for loved ones and can be stored with your Will. Here are a few simple things which you can do to plan ahead:

1. Draw up an inventory – Note down valuable digital assets such as music or creative work stored on a computer or hard drive. Check the terms and conditions of any accounts and services that you use to see what you can do to pass on, preserve or delete them post death. Be organised, if your assets change over time, remember to update the inventory and be sure to tell someone you trust where to find the list. Whether you choose to store your letter of wishes with your Will or elsewhere, you must tell your trusted persons where to find the letter.
2. Appoint a ‘Digital Executor’ – As well as appointing a traditional Executor, you can appoint a separate Digital Executor in your Will who will be responsible for closing, memorialising or managing your accounts, along with sharing or deleting digital assets such as photos and videos. If you are only appointing one traditional Executor then your Solicitors should make it known in your Will that such person is also appointed as a Digital Executor. With this ongoing revolutionary change in this modern day digital world almost everyone will need to consider the appointment of a digital Executor!
3. Social media accounts – Some social media platforms, such as Facebook, allow you to add a ‘legacy contact’ who can manage your account when you die. You may want it simply deleted, or “memorialised”, which means the word “remembering” will be placed next to your name. Not all social media platforms offer this service and so it would be your responsibility to check with the platform directly. If there is no mention of how such accounts are to be dealt with post death, then it is important to include your wishes in your letter of wishes.
4. Keep all passwords safe – As mentioned above, your letter of wishes can include an inventory of your digital assets, however, you shouldn’t put your passwords in your letter of wishes. Your passwords and other important personal data could be stored in an online encrypted and secure digital vault. You will then need to tell your trusted person how to access this vault. You may be able to set up an agreement with your secure digital vault company that your vault can only accessed by your digital executor upon presentation of your death certificate. You will need to check the terms of conditions of such agreements.

What should I know about Crypto assets?

Some people also choose to invest money in digital Crypto assets. It is particularly important to include details of any assets held in your inventory as mentioned above. Cryptocurrencies work using a technology called blockchain, which is a decentralised system used to manage transactions across a number of different computer systems. Crypto assets are not controlled by one centralised person/governing body, so are therefore not easily traceable in the same way that your typical bank account may be. In addition, Crypto assets are securely stored in a virtual wallet, requiring a mixture of public and/or private keys to access them. Public keys can be accessed by anybody, but private keys are unique to the account holder. With ownership of Crypto assets being pseudonymous to protect the identity of the account holder, there is no way of knowing your Executor knowing about your Crypto assets unless you tell them.

Next steps?

Every day, without realising it, we are creating an even larger digital footprint as we go through our lives. Anyone who owns a digital device or has an online account should have a plan for dealing with that asset, whatever their age. Your family or friends shouldn’t need to go to court to get access to your digital life when you die as long as you make arrangements beforehand. Court orders have only been necessary where the deceased hasn’t specified what access should be allowed by others when they were still alive. If you are concerned about your digital assets, or want to know what you can do within your lifetime to assist you loved ones after your death please get in contact our Private Client team on 01708 229 444.