Can your next of kin access your digital devices?
Posted on 29th April 2022
Ian Paisley Jr, the MP for North Antrim, has put forward a Private Members’ Bill. It is intended to give someone’s next of kin the right to access their digital devices. It would place a responsibility on service providers to unlock devices for people who don’t have the access codes of someone who has died. The Digital Devices (Access for Next of Kin) Bill is due to receive its second reading in May.
In 2021 a survey by STEP and Queen Mary University of London found that nearly a quarter of professionals had heard about the problems their clients faced when trying to access a family member’s digital assets after their death. Being unable to access digital accounts and details stored on digital devices is causing significant distress and frustration for family members. The situation is made worse, in many cases, by the unhelpful attitude of service providers.
Digital assets are now one of the important considerations in estate planning and administration and many have been arguing for a review of legislation for some time.
What are digital assets?
Photos, videos, or music can be lost when a family member dies or loses capacity to access their digital accounts which can be very distressing for their families. It might be impossible to access social network profiles or email accounts.
Most of us don’t keep physical records of our digital estate which could have monetary as well as sentimental value. Much of the content is likely to belong to us, so we should be able to pass it on to others when we die. However, there might be restrictions in the terms and conditions we agree to when setting up social media accounts, for example, which could mean our rights end when we die.
While you could own digital photos or videos stored on your devices, you might be the only person authorised to access them. This might also mean that consideration is needed of a loved one’s intellectual property rights.
In many cases terms and conditions will say that usernames and passwords shouldn’t be shared for confidentiality reasons and many service providers won’t allow your executors to access your accounts, although some social networks now allow you to select a ‘legacy contact’ who can make decisions and access some information.
There are also issues to be resolved concerning ownership and use, access, and privacy of digital content and electronic Wills.
In England the Law Commission is consulting about a right to apply to the court to implement someone’s last wishes expressed in an email, text or another type of electronic communication.
Steps you can take
You can leave clear instructions for your executors about what should happen to digital content when you die. While there is uncertainty about the ownership of your digital content it’s a good idea to store backup copies of your photos or videos on a hard drive and to print copies of documents that are important to you.
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