From cryptocurrency and online bank accounts to social media profiles and digital photos, most of us now own digital assets, often without even realising it. What happens to these assets when we die? And how does the law treat them differently across the UK?
The legal status of digital assets has long sat in an uncomfortable grey area. Both Scotland and England & Wales have now acted, but they have taken different approaches to the issue of recognising digital assets.
What are digital assets?
“Digital assets” is a broad term covering anything you own that exists electronically. This might include:
- Cryptocurrency (e.g. Bitcoin);
- Online bank or investment accounts;
- Social media profiles;
- Email accounts and cloud storage;
- Digital businesses or monetised content.
Some of these have financial value, while others (like photos or messages) have deep personal value.
The position in England & Wales
England &Wales rely on the Property (Digital Assets etc) Act 2025 (England & Wales), which ensures that something can still be property even if it does not fit within traditional categories. In practice, this can include everything from cryptocurrency to certain types of digital files and rights.
The legal framework has developed through judicial recognition of digital assets as a form of property and the Law Commission’s 2023 recommendations, which proposed a new category of personal property called “data objects”.
This means that digital assets can be owned, transferred or sold, they can be left in a Will, and the courts can protect them if they are stolen or hacked.
The system in England & Wales is flexible and adaptive as it relies on common law (judge led decisions) meaning that it can adapt to new technologies.
The position in Scotland
Scotland has recently enacted a bill recognising digital assets as ‘property’. The new Digital Assets (Scotland) Act 2026 gives digital assets explicit property status, with a technical, criteria-based definition of digital assets which aims to provide certainty for individuals, businesses, and courts. This means the law is particularly geared toward crypto-assets and tokenised systems, rather than every type of digital content.
Although the statutory framework in Scotland provides a functional definition and clear property status to digital assets, it is more prescriptive and technical, whereas England & Wales deliberately use a broader, more flexible concept of digital assets.
How this might impact your estate planning when writing a Will
If you are making a Will in England & Wales, digital assets should be treated just like any other valuable possession, but with extra care. It is important to consider:
- Explicitly including them in your Will;
- Giving executors authority to deal with digital assets;
- Ensuring that your executors know how to access the assets, otherwise they may be lost forever.
Cross-border issues: Why the Scotland difference matters
Even if you live in England or Wales, Scottish law can still become relevant if:
- You own digital assets governed by Scottish law;
- You move between jurisdictions.
Because Scotland’s definition is more technical, there may be:
- Differences in what qualifies as a digital asset;
- Differences in how assets are categorised and transferred.
This can complicate estate administration where more than one legal system is involved.
Practical Tips
To avoid problems later:
- Keep an up-to-date list of your digital assets;
- Store access details securely. Your Will may become a public document after your death and it is therefore important that your Will does not include passwords. Such information should be recorded separately;
- Tell your executor where to find the details;
- Review your Will regularly;
- Get advice if you hold high-value digital assets.
If you think now might be the time to prepare your first Will or you would like to update your existing Will, please contact Rachel Smith, Solicitor in our Tax, Trusts, Wills & Probate and she will endeavour to assist you.
This is only intended to be a summary and not specific legal advice.
