Written by Jessica Fazzone, Associate Solicitor, Tax, Trusts and Estates
On 18 January, The Digital Devices (Access for Next of Kin) Bill was brought before the House of Commons by Ian Paisley of the DUP. The bill proposes to “grant the next of kin the right to access the smart phone and other digital devices of a person on their death or incapacity”.
Digital assets include Amazon or eBay accounts, social media platforms such as Facebook or Instagram, photos and documents stored in the cloud, cryptoassets etc.
There’s no legislation to deal with digital assets and the attempt to deal with them is very welcome. However, the bill raises a number of questions and concerns. The immediate questions that come to mind are whether you would actually want your next of kin to have automatic access to your digital assets on your death or incapacity and do you know who your next of kin would be? There’s no legal definition of ‘next of kin’ however, a ‘next of kin’ is understood to be a person’s closest relative, for example, husband/wife, parent and child. This then begs the questions, how will the next of kin be determined and for example, how will you prove that you are the next of kin to a digital platform?
The bill states that automatic access is a default position but how will this work in practice? What if the deceased specifically named a digital executor in their Will to deal with their digital assets and this is not the same person as their next of kin. Giving the next of kin automatic access might lead to the deceased’s digital assets being dealt with before a Will or letter of wishes has been located. If the deceased has left a written note of their wishes in respect of their digital assets, this might not have been located before automatic access has been granted and steps might have been taken by the next of kin contrary to the deceased’s intentions. There might also be personal information that the deceased or incapacitated would not want to disclose to their next of kin. I also question whether there’s a potential risk that the next of kin is found to be intermeddling in the deceased’s estate by dealing with the deceased’s digital assets.
As noted above, granting automatic access to a next of kin opens up a can of worms. Whilst this author has raised some questions as food for thought, a second reading has been diarised for 18 March 2022 (postponed from 4 February 2022) and it’s expected that further details will be presented as to how this would work in practice.
In the meantime, here are some of our general recommendations in relation to dealing with digital assets:
Keep an inventory of your digital assets and devices
The digital inventory should clearly set out what digital assets you own, location, instructions on how to access accounts, usernames, passwords etc. This document should be updated regularly and should be kept in a safe place. If you are uncomfortable including usernames and passwords in the same document, there are other options available such as using a dead-man switch or an online service provider which can store your usernames and passwords for a fee
As a word of warning, readers should be aware that, for example, using a deceased’s password to access an account after a death may not only be a breach of the account provider’s terms and conditions but may also be a criminal offence under the Computer Misuse Act 1990. Executors in particular should seek advice as to how best deal with a deceased’s digital assets. This is particularly relevant if someone attempts to access the deceased’s work laptop or work phone
Update your Will and letter of wishes
Your Will can name a digital executor – we recommend that this is someone that is tech savvy and can easily deal with your digital assets
Whether you name a digital executor or not, a letter of wishes is particularly important. The letter of wishes can contain the details of how you wish for your executor to deal with your digital assets. For example, whilst Instagram doesn’t currently give access to your account after death, immediate family members may request the removal of your account. You might instead wish for your legacy to continue and for your account to be memorialised instead. This can be something you set out in your letter of wishes. If you hold cryptoassets, your letter of wishes can detail where you have stored your private key/seed words and what your wishes are i.e. to sell or not to sell your cryptocurrency on your death
Review and update your digital accounts
Apple recently released its digital legacy feature on 13 December 2021. You can now nominate a legacy contact being someone that is able to access the data in your Apple account after your death. Once you’ve nominated someone, you’ll be given a code that the legacy contact will need in order to access your account, together with a death certificate. Instructions on how to access or where the code is kept can be kept in your letter of wishes.
As a final comment, although The Digital Devices (Access for Next of Kin) Bill is only a private members’ bill, this is certainly an area which needs urgent attention which has previously been highlighted by STEP’s ‘Digital Assets: A Call to Action’ report.