On January 18, the House of Commons received the Digital Devices (Access for Next of Kin) Bill from Ian Paisley of the DUP. The bill seeks to “allow relatives access to a person’s smartphone and other digital gadgets on their death or incapacitation.”
Amazon or eBay accounts, social media platforms like Facebook or Instagram, photos and documents stored in the cloud, cryptoassets, and so on are all examples of digital assets.
There is no legislation regulating digital assets, and the government’s efforts to address them are much appreciated. The bill, however, raises a number of issues and concerns. The first issues that spring to mind are whether you’d want your next of kin to have unlimited access to your digital assets on your death or incapacitation, and if so, who they would be. There is no legal definition of “next of kin,” however a “next of kin” is defined as a person’s closest relative, such as spouse/wife, parent, and child. This then raises the question of how the next of kin will be identified, and how would you demonstrate 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 specified a digital executor in their Will to handle their digital assets and this isn’t the same person as their next of kin? Giving the next of kin automatic access may result in the digital assets of the decedent being dealt with before a Will or letter of wishes has been found. If the deceased has specified their intentions in writing regarding their digital assets, they may not have been discovered before automatic access was allowed, and the next of kin’s actions might have been taken against those wishes. There may also be private information that the deceased or incapacitated would wish to keep from their family. I’m also concerned whether the next of kin, in attempting to administer the deceased’s digital assets, may be found to be interfering with the estate.
As previously stated, allowing access to a next of kin opens up a can of worms. Whilst this author has posed some questions for further thought, a renewed reading will be done for March 18, 2022 (postponed from February 4, 2022), and additional information on how this would function in practice is expected.
Meanwhile, here are some of our broad guidelines on how to deal with digital assets:
Keep a record of your digital assets and devices.
The digital inventory should clearly identify what digital assets you possess, where they’re located, how to access accounts, usernames, and passwords. This letter should be updated on a regular basis and kept in a secure location. If you are opposed to putting usernames and passwords in the same document, there are alternative options such as using a dead-man switch or an online service provider that can save your usernames and passwords for a fee.
Readers should be aware that, for example, using a deceased’s password to access an account after death may not only violate the account provider’s terms and conditions but also be a criminal offense under the Computer Misuse Act 1990. If a deceased’s digital assets are left to the executors, they should seek counsel on how best to manage them. This is especially important if someone tries to gain access to the decedent’s work computer or phone.
Update your Will and letter of wishes if necessary.
You may pick a digital executor for your Will: we recommend that it’s someone tech-savvy and able to deal with your digital belongings simply.
A letter of wishes, whether you name a digital executor or not, is essential. The letter of wishes can include information about how you want your digital assets handled. While Instagram does not currently give access to your account after death, immediate family members may ask for it to be disabled. You might rather want your legacy to live on and for your account to be remembered instead. This could be something you include in your letter of wishes. If you have cryptoassets, your letter of wishes may state where you keep your private key/seed words and what you want to happen on your death, such as whether or not to sell them.
Keep track of all your digital accounts and make changes when necessary.
On December 13, 2021, Apple launched its digital legacy function. You may now designate a legacy contact, who will be able to access your data after you pass away. You’ll get a code to use on the legacy contact’s end, as well as a death certificate after you’ve nominated someone. Instructions for obtaining or where to find the code can be included in your letter of instructions.
Finally, although The Digital Devices (Access for Next of Kin) Bill is a private members’ bill, it is undoubtedly an issue that requires immediate attention, as acknowledged in STEP’s “Digital Assets: A Call to Action” report.