Digital assets: can I access my loved ones’ digital devices after they have died?

In a tech-focused society, it is important to think about your digital legacy and how digital assets can be accessed by your loved ones as part of your estate.

What are digital assets?

Digital assets are possessions stored on a devices such as mobiles, laptops and computers. They include sentimental items, such as photos and videos, as well as assets with financial value, such as online shopping accounts or cryptocurrencies. It is therefore understandable that after someone dies, a family member may wish to access their loved one’s digital data for sentimental or financial purposes.

What happens to them when I die?

Unfortunately, the legal position on who owns those digital assets after death is not clear-cut.

At present, this material can be lost forever because there is no legal right of access to a person’s digital devices. Many tech giants such as Apple, Google, and Meta (formerly Facebook), are particularly strict when it comes to family members accessing data; many individuals have to resort to litigation.

We previously helped one mother to gain access to her daughter’s iPhone and iCloud contents after she died. Despite Apple’s obstructive stance which meant that the rights to those digital assets would be lost unless a court order was obtained, we obtained a judgment within four months ordering Apple to provide our client with access and to pay her costs.

In his decision, the judge said that he had “no hesitation in making a declaration as to the ownership of the phone and data as having passed to the claimants”, and that it was “entirely natural and understandable” for bereaved parents to want access to their child’s device following their untimely death.

Is the law changing?

This issue has been in the spotlight once again following the Digital Devices (Access for Next of Kin) Bill instigated by DUP MP Ian Paisley. The bill aims to allow their next of kin access to the deceased’s digital legacy.

The bill is currently being read by the House of Commons. However, it is alleged that the government is not backing the bill, as it expects tech companies to have clear policies dealing with these situations. However, if it successfully passes through parliament, the bill will enable next of kin immediate access to the deceased’s digital assets and will place a requirement on technology companies to facilitate such access.

What can I do to protect my rights in the meantime?

In the meantime, there are steps you can take to gain access to your deceased loved one’s digital device and to protect the rights of your family members to your own digital assets.

• Update your will – only 7% of those surveyed by the Law Society in 2021 had included their digital assets in an up to date will.
• Seek legal advice. A solicitor can help you obtain a court order or advise you on the measures you may take to protect your relatives’ position