Estate Administration: The Digital Assets Dilemma By: Laura Walliss Laura Walliss provides an introduction to the laws in the UK concerning the growing issues surrounding estate administration of digital assets. The rapid increase in the range and prevalence of digital assets over the past few years is creating an ever-widening gap between the technologies available to the public and the lumbering legal systems struggling to catch up. Legislation governing vital legal considerations relating to those assets – such as, ownership, access and succession – has yet to arrive. In the void, personal representatives (PRs) and their legal advisers administering the estate of a deceased person are left trying to navigate uncharted territory and fulfil their traditional duties and responsibilities, without the necessary legal framework in place to enable them to do so.
One of the areas in which the lack of digital asset legislation causes the most practical difficulty, is in relation to accessing online accounts after death. With no legal framework in the UK requiring a deceased person’s PRs to be permitted access to their digital assets, access is currently governed by the terms and conditions of the service provider of the relevant digital asset. This is problematic for two reasons. First, these terms and conditions were usually not written with the death of the account-holder in mind and often do not provide adequately (or at all) for the situation. Secondly, digital assets service providers are often based in the United States, which has stringent privacy laws. In fear of falling foul of these laws, service providers are often loathe to allow access to anyone other than the original account-holder, with the vast majority prohibiting the customer sharing their account password or assigning their rights under the contract. This can cause real practical difficulties during an estate administration. Section 1 of the Computer Misuse Act 1990 makes it an offence (amongst other things) to access an online account after someone’s death without authority. In the case of online accounts, this authority must come from the service provider and, for the reasons outlined above, this is not usually forthcoming. In some cases, the situation is improved where the deceased has been able to engage with these issues during their lifetime.
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