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Insights // 21 February 2022

Digital Assets on Incapacity and Death - Why the ‘Digital Devices (Access for Next of Kin) Bill’ is a Step Forward

Charlotte Smith and Louise Low explain why the the ‘Digital Devices (Access for Next of Kin) Bill’ will prove to be a helpful step forward for individuals and their loved ones when it comes to safeguarding and passing on their digital assets.

The ‘Digital Devices (Access for Next of Kin) Bill’ has passed its first reading in the House of Commons and its second reading is scheduled for 18 March 2022. If it passes all of the required stages, it will create a new law that permits the next of kin of a deceased or incapacitated person automatic access to the contents of their digital accounts.

The Bill is sponsored by Ian Paisley MP, who estimates that assets of £25 billion are held in cloud storage solutions, but it is not only financial assets that people are concerned about. Invaluable sentimental assets such as photographs and videos are held digitally and even assets that may not be seen as valuable in the usual sense of the word, such as domain names or progress and ‘items’ held in video games, may need to be considered. Given the recent growth of cryptocurrencies such as Bitcoin, NFTs (non-fungible tokens) and online shopping, it is likely that the meteoric expansion of the types of digital assets will only continue.

The current legal position

The current legal position makes it very difficult for next of kin to access digital assets or even establish their existence. The Computer Misuse Act 1990 makes it a criminal offence for anyone to gain unauthorised access to a computer device, for example by using another person’s password without their permission. This means that unless specifically authorised by a deceased individual before they pass away, Executors are not able to access password-protected devices or accounts. Furthermore, each technology company has their own policy regarding unlocking and accessing accounts after death. Ultimately, many deceased’s assets are either unknown or inaccessible and are subsequently lost.

What next?

If it passes, the Bill will ensure that next of kin are given immediate access to their deceased loved ones’ digital assets and place a responsibility on technology companies to provide access to devices and accounts without legal action. It promises to be a much-needed development in the law that reflects modern estates and the assets people now own. We will eagerly await the outcome of each of the required stages until it is submitted for Royal Assent.

In the meantime, it is important that digital assets are considered in Wills. Testators should include their instructions in reference to any online assets, accounts and devices. This will facilitate access to the same after their death and enable their Executors to adhere to their wishes, without any risk to their own position.

Our Wills Probate, Tax and Trusts team can advise on making or updating a Will, while our Dispute Resolution team can advise on any disputes that may arise.

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800. 

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.

Charlotte Smith

Charlotte Smith

Chartered Legal Executive, Wills, Probate, Tax & Trusts

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Louise Low

Louise Low

Trainee Solicitor

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