Digital assets - a legislative change?

Dispute resolution

In May 2019, I published an article discussing the thorny subject of digital assets and how important it was to make sure these were addressed in your wills following the sad case involving Rachael Thompson. Rachael had to take court proceedings against Apple to secure an order allowing her to have access to her late husband’s account following his tragic death. This was to enable her to retrieve all his images and videos stored on his iPhone. See here. - Two or so years on and probate practitioners are now calling for legislative change to help families access the digital assets of relatives who have died.

What are digital assets?

Digital assets are objects that exist only in electronic format and have monetary or, more often, sentimental value such as photographs, social media accounts, loyalty schemes and cryptocurrencies.

A study by the Society of Trust and Estate Practitioners and Queen Mary University of London found that there is a lack of clarity around property rights relating to digital assets and in a recent global survey of 500 professional inheritance advisers, nearly 60% said they had dealt with questions from clients about digital assets with around a quarter saying their clients had faced difficulties accessing the digitals assets of a deceased family member.

Why reforms?

Digital assets are becoming increasingly important in today’s modern society and whilst the study called for technology companies and cloud providers to work with lawyers to make access to a deceased’s account less fraught following the death of a loved one, it concluded that the law needs to be reformed so as to introduce clear rules surrounding property rights and post-death access rights by executors. The law recognises that a digital asset can be property and that a digital assets can be “owned” but it does not recognise the possibility that a digital asset can be “possessed” because the concept of “possession” is currently limited to physical things.

Next steps

The Law Commission of England and Wales is currently reviewing the law on digital assets. It has been asked by the Government to make recommendation for reform to ensure the law is capable of accommodating both cryptoassets and other digital assets in a way that allows the possibilities of this technology to flourish. It is intended that their work will consider whether digital assets should be “possessable”. Its call for evidence seeking views about, and evidence of, the ways in which digital assets are being used, treated and dealt with as well as views on the question of “possessable” closed at the end of July 2021. Work will now be taking place to publish a consultation paper on digital assets with proposals for law reform. It is hoped that this will be available next year. In the meantime, the Law Society is urging all people to make sure that they include digital assets in their wills so as to ensure that access can be gained to any online accounts following your death.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.