Digital assets and online accounts after death

This is an increasingly important area of law in England and Wales, and one where the legal framework is still catching up with modern reality. Here is the current position and the practical considerations.

General legal position:

When a person dies, their personal representatives (executors if there is a will, or administrators if there is not) are responsible for dealing with the deceased's estate. In principle, the estate includes all property and assets belonging to the deceased at death. Digital assets can form part of that estate, but the position is more complex than it might first appear.

What counts as a digital asset:

Digital assets can include a wide range of things. Cryptocurrency such as Bitcoin or Ethereum. Domain names. Digital media libraries such as iTunes, Kindle, or Steam. PayPal or other online payment accounts. Social media accounts such as Facebook, Instagram, or X. Email accounts. Online banking and investment platforms. Loyalty points, air miles, or rewards. Digital photographs and documents stored in the cloud. Online businesses, websites, or revenue-generating content.

Ownership versus licence:

A critical distinction is between assets that are truly owned and those that are merely licensed. Many digital services, such as iTunes, Kindle, and streaming platforms, operate under terms of service that grant a personal, non-transferable licence. This means the user does not actually own the content, only a right to access it during their lifetime. On death, the licence typically terminates and cannot be passed on. This catches many people by surprise.

By contrast, cryptocurrency, domain names, PayPal balances, and funds held in online accounts are more likely to be regarded as property capable of passing on death. English law has been moving towards recognising certain digital assets, particularly cryptoassets, as property. The Law Commission published a report in June 2023 on digital assets, recommending that the law should recognise a third category of personal property beyond things in possession and things in action, to cover digital assets such as cryptoassets and certain digital tokens. While legislation has not yet followed, the courts have already treated cryptoassets as property in cases such as AA v Persons Unknown (2019) and other freezing injunction cases.

Terms of service:

Each platform has its own terms of service and its own policies on what happens after death. Some examples of common approaches are as follows.

1. Facebook and Instagram allow accounts to be memorialised or deleted on request from a verified family member or designated legacy contact.
2. Google has an Inactive Account Manager that allows users to set up what happens to their data after a period of inactivity, including sharing with nominated contacts or deletion.
3. Apple introduced a Digital Legacy programme allowing users to nominate legacy contacts who can access their data after death, though the terms around purchased content remain restrictive.
4. Many platforms will not give executors access to the account at all unless there is a specific legal order or the platform's own process is followed.

The terms of service create a practical barrier even where the executor may have a legal right to the underlying asset. Platforms are often based overseas, typically in the United States, and may rely on their own terms and applicable foreign law to resist disclosure.

Practical problems:

The biggest practical issues are access and knowledge. If the deceased has not left a record of their digital accounts, passwords, and recovery information, the personal representatives may not even know what digital assets exist. Even if they do know, platforms may refuse access without a grant of probate, a death certificate, a court order, or compliance with their own specific processes. Two-factor authentication, encrypted devices, and password managers can create further barriers.

Cryptocurrency raises particular difficulties because if the deceased held crypto in a private wallet and the private keys are lost, the assets may be permanently inaccessible. There is no central authority to reset access.

What the law allows personal representatives to do:

Personal representatives have a duty under the Administration of Estates Act 1925 to collect in the assets of the estate. This includes digital assets that are property. They can apply to platforms with the grant of probate or letters of administration and the death certificate, requesting access or transfer. If a platform refuses, the personal representatives could in theory seek a court order, though this is often impractical given that many platforms are based outside England and Wales.

Planning ahead, the practical steps:

The best approach is for individuals to plan for digital assets during their lifetime. The most useful steps include the following.

1. Keeping a secure, up-to-date record of all digital accounts, including login details, passwords, and recovery information, stored in a way that trusted individuals can access after death.
2. Using platform-specific legacy tools where available, such as Google's Inactive Account Manager or Facebook's legacy contact settings.
3. Including express provisions in a will dealing with digital assets, making clear what should happen to them, and granting executors authority to access, manage, transfer, or close digital accounts.
4. For cryptocurrency, ensuring that private keys or seed phrases are recorded and stored securely, with clear instructions for the executor on how to access them.
5. Considering a separate letter of wishes or digital asset schedule that sits alongside the will, particularly where details may change frequently and updating the will each time would be impractical.

Current gaps and future reform:

The law in this area is not fully settled. The Law Commission's 2023 report is likely to lead to reform in due course, but for now there is no specific legislation in England and Wales that comprehensively deals with digital assets on death. The Wills Act 1837 does not specifically address digital property, though a properly drafted will can and should cover it. There is no equivalent of the US Revised Uniform Fiduciary Access to Digital Assets Act.

Summary:

Digital assets are a real and growing part of most people's estates. The legal position is that many digital assets can form part of the estate, but practical access depends heavily on the platform's terms of service, the type of asset, and whether the deceased left adequate records and instructions. Planning ahead is by far the most effective way to deal with this, and anyone with significant digital assets should ensure their will and supporting documents address the issue clearly.