Following the second reading of the Digital Devices (Access for Next of Kin) Bill in parliament, We Here at Shawstone Associates explain and go through whether you access someone’s digital assets when they die.

What is the Digital Devices (Access for Next of Kin) Bill?

In today’s ever-evolving digital age, new legal questions are being asked so in this month’s article we are going to go through the question: “what happens to our digital assets when we die?” 

Our answer to this lies in a proposed bill currently going through parliament called the Digital Devices (Access for Next of Kin) Bill.

The bill was brought forward by MP Ian Paisley a Democratic Unionist Party member. He introduced this to aid personal representatives when trying to access social platforms or digital assets of their incapacitated and departed loved ones.

If this bill is passed, (which had its second reading at Parliament on 6 May 2022) it would allow automatic access to content held on digital devices or could force technology companies to be responsible for unlocking the devices.

Currently, the Computer Misuse Act 1990 (under sections 1 to 3) makes it a criminal offence for anyone to gain unauthorised access to a device, and this includes acts such as even using another person’s password without their permission.

Currently, there is no set legal definition for what constitutes “digital asset” but MP Ian Paisley estimates that around £25 billion of assets in the UK are held in protected electronic storage facilities. 

Can you access someone’s digital assets when they die in the UK?

Experts estimate that more than 50% of UK adults do not have a will, thus have not made any sort of provision or plan for their loved ones to access their digital platforms when they are no more. Even when a will is drafted and made, digital assets are often forgotten about as more and more companies are migrating to online services.

A keynote to remember is that all online services have their own unique and diverse of rules and regulations on who can access someone’s data they have died or are incapacitated. Thus, accessing a loved one’s digital assets is a borderline herculean task along with it being quite costly for executors and administrators.

MP Ian Paisley stated in his address to the House of Commons: 

“People are creating an even larger digital footprint throughout their lives, both personally and financially. Leaving a treasured possession such as a photo album or a collection of memorabilia and previous memories used to be quite easy, but that now often intangible property may be buried beneath layers of cyber security.”

At present this remains a grey area and there is currently no legislation defining what is a digital asset, and therefore no legislation governing a personal representative’s access to them. This Digital Devices (Access for Next of Kin) Bill would ensure that digital assets are defined as a person’s possession.

Can you ensure your digital assets are accessible when you die?

When we think about digital assets, this could cover a whole plethora of things, some examples are:

• social media accounts
• financial accounts, such as PayPal
• cryptocurrency accounts
• photographs on a smart phone
• downloaded songs
• gaming accounts

Whilst the likes of PayPal and cryptocurrency accounts naturally hold an intrinsic monetary value to a deceased’s estate, it can also be debated that gaming accounts might have a monetary value too. Therefore, one must need to consider these things when estate planning.

Some social media platforms, like Facebook, have a system which allows people to plan ahead and appoint a ‘legacy administrator’. Apple too has a system that allows you to appoint a ‘Legacy Contact’. This allows you to give an individual access to the data stored in their Apple account after they pass away. The worst scenario is that some social platform providers will even delete inactive accounts, this would mean losing years of precious memories and data of that loved one.

With cryptocurrency, the user must have a private digital key in order to gain access to their account, unless they their executors have this digital key it would make their account would be inaccessible.

What are the potential issues with the Digital Devices (Access for Next of Kin) Bill?

Well, it’s not all sunshine and rainbows as there are still some issues the Digital Devices (Access for Next of Kin) Bill cannot solve. As many financial institutions and other companies migrating away from physical documents and files, a personal representative of an estate could not be able comply with their duty of collecting all the assets if they are not aware about all the assets.

Although the bill would make the process of gaining access to digital assets easier for the executors and executrix, it is paramount in respecting the privacy of the beloved departed or incapacitated along with anybody associated with them must be equally respected, thus there are many discussions in how this bill would be truly effective in its overall aim.

Also, it’s also best to remember and consider that many providers are based in the United States, where privacy laws are much stricter. Thus, there are concerns on how the bill can be enforced in such countries. Another issue is that many providers are currently unwilling to unlock or provide access to digital data due to laws in the US and the European Union being so strict.

Summary

To summarise, now is the time for the outdated and archaic laws to finally catch up with modern world of estate planning and the Digital Devices (Access for Next of Kin) Bill would be very welcome to those who want to preserve the memory of their now gone loved ones. However, it may be a long time before this becomes law as there some glaring questions and issues which arises from this bill. However, until that time comes, in the meantime, the subject of digital assets must be something every will and probate practitioner should be addressing with their clients in relation to estate planning.

Digital Devices (Access for Next of Kin) Bill – Parliamentary Bills – UK Parliament

Computer Misuse Act 1990 (legislation.gov.uk)