The European Law Institute has now published Model Rules on Succession and Access to Digital Remains. Jack Burroughs, from Quastels’ Private Wealth and Tax team, represented STEP (The Society of Trust and Estate Practitioners) in this project.
The difficulties of a digital legacy
Those who die increasingly leave behind a large variety of digital remains. From files on a person’s own devices, to cloud storage and online accounts stored remotely, to entirely new forms of asset like cryptoassets, these may have significant financial or sentimental value.
However, the law has been slow to catch up in this area. The ELI’s Model Rules are therefore an important and very welcome development.
Some of the confusion around the legal treatment of digital remains has arisen from attempts to treat all of these disparate things in the same way. The Model Rules have avoided this by recognising a clear distinction.
On the one hand, there are things that can be controlled and transferred (such as cryptoassets), which are referred to in the Model Rules as ‘digital assets’. On the other hand, there are those things intrinsically linked to a person’s personality, identity or private life (such as digital files and online accounts, or even AI chatbots trained on that individual), which are referred to as ‘personal digital remains’.
These two different types of digital remains present different legal difficulties, and so the Model Rules set out two separate legal regimes to deal with them.
Digital Assets
There is a lack of certainty in some jurisdictions as to whether digital assets are subject to property rights, and subject to succession law upon the owner’s death. The Model Rules deal with this problem by confirming that digital assets will be subject to the succession law that would apply to moveable property. The question of which succession law applies will be determined by the applicable private international law.
In addition, the Model Rules require service providers to provide mechanisms and rules to ensure the orderly transfer of digital assets. For example, this would require a cryptoasset custodian to have systems in place to be able to transfer control of the cryptoassets it holds for a deceased person to the relevant personal representative or heirs.
However, in cases where a person has self-custody of their cryptoassets, there will be no service provider to assist, and so it is important for such individuals and their advisors to ensure they have an adequate cryptoasset succession plan to ensure the right people will gain access to their private keys at the right time.
Personal digital remains
A major problem in digital legacy planning has been dealing with personal digital remains. Treatment varies between jurisdictions, but typically these are not regarded as subject to property or succession law. Though less of a problem when it comes to files and information stored on a deceased person’s own devices, often many personal digital remains will be under the control of third parties such as email hosts, cloud storage providers, or social media companies. In such cases, heirs and personal representatives may be at the mercy of the contractual terms and policies of overseas tech companies, which are rarely designed with succession planning in mind (see for example STEP’s comparative study [link https://www.step.org/digital-legacy-scorecard])
Other jurisdictions have provided solutions, such as the legislation based on the Uniform Law Commission’s Revised Uniform Fiduciary Access to Digital Assets Act enacted in most states of the USA. However, this will generally not assist European residents.
The Model Rules would therefore be of great benefit in this respect. They work on the basis of a right of access, rather than attempting to apply succession law, and they empower the individual to decide what happens to their personal digital remains upon death. This means that they may choose to direct the deletion of certain things, or to explicitly nominate other people to have access. In the absence of specific nomination, the heirs and personal representatives will have the right of access.
There are provisions for the protection of third party interests, including the right to request access where a legitimate interest can be demonstrated, or to request restrictions on access where rights are threatened. Furthermore, there are also provisions to resolve disputes between those entitled to access.
Crucially, these rules would take priority over any contractual terms, except where a service provider can prove such terms were individually negotiated with the deceased person. They would also require service providers to preserve personal digital remains for at least five years, unless the deceased explicitly directed otherwise, or the persons entitled to exercise the access right request deletion.
As time goes by, digital legacies will be of increasing financial and sentimental importance, and therefore it is vital that planning is not hindered by unclear law and inconsistent terms of service. Hopefully therefore the UK will move to enact legislation based on these Model Rules.
A version of this article originally appeared on the ELI’s website.
