Digital Assets After Death: Why the Law Hasn’t Caught Up – and What to Do Now

If I asked you to list everything you own, would you think about the camera roll on your smartphone?

Why digital assets need special attention

People tend not to see digital assets, like photos, music playlists, social media accounts, as ‘assets’ in the usual sense. Aside from cryptocurrency, these things may not hold a recognisable financial value or represent something similarly tangible to a home, an engagement ring or money in the bank. But digital assets exist, and they outlive their creator or owner. And for loved ones left behind, digital assets maintain an important connection to the person they have lost.

As the number and types of digital assets have grown, so too have issues encountered by people who want to access them following a person’s death. For good reason, password and data protection is robust. And while it would seem sensible to allow a daughter to access the photos on her deceased mother’s phone, or a widower to get into his wife’s Facebook account, this has historically been less than straightforward. It is a situation that has increased the pain and suffering felt after a loved one’s passing.

In January 2022, a Private Members’ Bill — the Digital Devices (Access for Next of Kin) Bill — was introduced to give next of kin a legal right to access a deceased person’s digital devices. It reached its second reading in May 2022 and then stalled. The UK government chose not to back it, leaving the issue to tech companies to manage through their own internal policies instead. Without that legislation, accessing a loved one’s device or accounts without authorisation — even as next of kin — remains a criminal offence under the Computer Misuse Act 1990. The gap in the law that prompted the Bill remains unfilled.

The Bill has some way to go before becoming law, but I very much hope that its journey leads to these significant changes being made. Clients who come to see me after the death of a loved one are often overwhelmed by the formalities that need to happen. Everything, from the clearing out of clothes from the wardrobe, to the gathering in and division of assets and liabilities, places a strain on already fragile people who are doing their best to get through the hardest of times. To then be faced by a brick wall when attempting to retrieve their loved one’s digital data has felt an unfair additional challenge.

What families can do now

Until the law catches up, the burden falls on individuals to plan ahead. There are practical steps worth taking now: major tech platforms offer built-in tools — Apple’s Legacy Contact and Google’s Inactive Account Manager both allow you to designate who gets access after you die. But the most robust protection is including your digital assets explicitly in your Will and Lasting Power of Attorney, giving your executors a clear legal mandate to act.

We can help you ensure your digital assets are properly covered in your estate planning — from writing a Will that explicitly addresses your online accounts and devices, to including clear instructions in your Lasting Power of Attorney while you still have capacity to do so

For advice about organising your affairs, or specifically about digital assets, contact me today.

You can also read more tips on digital assets in estate planning here