NSW mulls digital asset inheritance laws

The NSW Law Reform Commission has been tasked with examining whether state laws need to be updated to deal with what happens with a person's social media accounts and digital assets after death.

NSW attorney general Mark Speakman said while some social media networks have provisions to deal with the death of account-holders, little thought is given to other digital property.

The review will examine who can access the digital assets of people who are dead or otherwise incapacitated.

Assets covered by the review include photos, videos, emails, online banking accounts, cryptocurrency, domain names, blogs, and online gaming accounts.

The review will consider relevant laws from around Australia and internationally, including those related to intellectual property, privacy, contract, crime, estate administration, wills, succession, and assisted-decision making.

Speakman said the commission would look at whether additional privacy protections are needed when a deceased person hasn't nominated someone to manage their email and social media accounts.

It will also examine the existing policies and service agreements used by digital service providers.

The commission said family members and fiduciaries can face significant boundaries to gaining access to often valuable or sentimental assets, largely due to service agreements.

It identified a growing trend in litigation overseas where family members end up in court fighting for access to a deceased person’s online accounts. No such issues have yet come before Australian courts.

In the US, 38 states have enacted reforms to fiduciary legislation concerning digital assets. These mean a person may dispose of both their tangible and electronic property as they see fit, regardless of services agreements.

However, if a person fails to provide instruction, the service agreement will apply.

In 2016 Canada also enacted legislation governing access to digital assets.

The NSW review will seek preliminary submissions until 1st June.