Will drafting and digital assets

Trusts Discussion
1

I am wondering if will-drafters provide health warnings about digital assets when sending out a draft will for approval, or even the final will for execution.

Although a testator might have no digital assets today, they might well acquire some along the way.

Whilst the will tells the executor(s) what to do with the estate, it does not tell them what is in the estate or how to access it. If the estate includes, say, cryptocurrencies or other assets which are accessed only on line, there may be no paper record - only hearsay - and the executor may have no access to the deceased’s email accounts to see what activity there has been.

Whilst I am inclined to the view that will-drafters should routinely flag to their clients the potential for potentially significant estate assets to be lost, unless the testator also shares details of their online/digital assets with their intended executor or a close confidant the position could be irretrievable. However, that is only one step in ensuring such assets can be obtained for the benefit of the estate, as somewhere along the line the testator will also need to share the access codes as knowledge alone of, say, Bitcoins is of little help.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

2

I would say that the issue of Digital Assets and their associated difficulties as specific contractual rights is so notorious that an adviser must be now aware of them. While a wording for a gift e.g in a Will might not be hard to devise or research the key problem is that PRs should ideally have the same access as the deceased not least to passwords and the right to use or change them.

The Law Commission has made a call for evidence and the Law Society published an entire book about it by Julie Bell in May 2021

Jack Harper