Imagine a sole trader whose entire business operates through Etsy, Stripe, PayPal, Google Workspace and Instagram. They die unexpectedly. Their executors may inherit the business in principle, yet find themselves unable to access the very accounts needed to continue trading.
Yet English succession law has struggled to accommodate this shift[1]. Digital assets are often governed by a combination of contract law and platform terms of service[2], rather than clear proprietary rules, creating uncertainty as to whether (and how) such assets can be transferred on death. This problem is particularly acute for small online businesses, where the death of a single individual may result in the immediate loss of access to essential commercial systems.
This issue extends beyond a purely theoretical concern. The Law Commission’s consultation on digital assets identified that the administration of digital assets following death is often complicated by the differing contractual terms and policies adopted by online service providers. For small online businesses that rely on digital platforms to trade, market products or manage customer relationships, these inconsistencies may prevent personal representatives from accessing or managing essential business accounts, placing the continuity and value of the business at risk.[3]
In July 2024, the Law Commission published a supplementary report alongside a draft Bill aimed at implementing its recommendation to place certain digital assets on a clearer statutory footing[4]. The proposed legislation would confirm the existence of a “third category” of personal property, designed to accommodate digital assets that do not fit within the traditional classifications of “things in possession” or “things in action”. While the Bill would provide legislative recognition of this category, the Law Commission emphasised that its boundaries would ultimately be developed by the courts, allowing judicial flexibility to determine which assets fall within it and what rights attach to them in practice, thereby preserving doctrinal flexibility but leaving a degree of uncertainty to be resolved through future litigation.
Despite this uncertainty, English courts have shown willingness to recognise certain digital assets as capable of constituting property. In AA v Persons Unknown[5], the High Court accepted that cryptocurrency (Bitcoin) is capable of being property, reflecting judicial willingness to accommodate digital assets within existing legal categories. In Ion Science Ltd v Persons Unknown[6], the court proceeded on the basis that cryptoassets were capable of supporting proprietary claims. However, while these authorities confirm that digital assets may attract property-like protection, they do not resolve the practical difficulties of control and access where assets are held within platforms governed by private contractual terms that small businesses may use to operate, such as Etsy. As a result, a distinction emerges between the legal recognition of digital assets as property and the contractual mechanisms that determine whether they can actually be accessed or administered after death.
The persistence of this divide between legal recognition and practical access suggests that further legal development is required if succession law is to remain effective in a digital economy. While the Law Commission’s proposed “third category” of property represents an important step towards conceptual clarity, it does not, on its own, resolve the operational difficulties faced by personal representatives, such as small business owners, attempting to administer digital estates.
In practical terms, reform may be needed to address the imbalance between private contractual control exercised by platform providers and the legal authority granted to executors under English succession law. One possible approach would be to introduce clearer statutory obligations requiring digital service providers to facilitate access to business-critical accounts upon the provision of appropriate probate documentation[7]. This would not remove the contractual autonomy of platforms, but would ensure that such contracts cannot operate to frustrate the administration of estates.
Alongside legal reform, more should also be done to encourage business owners to plan ahead. This could include clearer instructions in wills about digital accounts and online business tools, as well as safer and more standard ways of recording and passing on account access information. However, these practical steps are only likely to work properly if there is a clearer legal framework governing access to digital assets after death.
Ultimately, this highlights that the legal recognition of digital assets as property is not, in itself, sufficient to ensure their effective transmission on death. An executor may inherit ownership of an online business but remain unable to access the Etsy seller account, Stripe payment portal or business email account needed to fulfil customer orders. Without corresponding mechanisms that secure access and facilitate succession in practice, the value of such assets may remain effectively controlled by platform providers, despite forming part of the deceased’s estate.
For practitioners, this underlines the importance of asking clients not only about traditional business assets but also about platform-based businesses, digital payment systems and cloud services when taking will instructions.
For small online businesses in particular, this gap between legal entitlement and practical access presents a genuine risk to continuity, value and commercial identity on death. Until clearer rules emerge governing the interaction between succession law and platform-based control, the effectiveness of digital estate planning will remain dependent not only on legal rights, but on the contractual architecture of the digital economy itself.
[1]Gerry W Beyer and Naomi R Cahn, ‘When You Pass on, Don’t Leave the Passwords Behind: Planning for Digital Assets’ (2012) 26 Probate & Property 40–45.
[2] Law Commission, Digital Assets: Final Report (Law Com No 412, 2023) paras 7.2–7.10.
[3] Law Commission, Digital Assets: Call for Evidence Responses (2022) 9, para 35 (submission of the Society of Trust and Estate Practitioners (STEP)).
[4] Law Commission, Digital Assets: Final Report (Law Com No 412, 2023) and Law Commission, Digital Assets: Supplementary Report and Draft Bill (2024).
[5] AA v Persons Unknown [2019] EWHC 3556 (Comm), [2020] 4 WLR 35.
[6] Ion Science Ltd v Persons Unknown (Unreported, 21 December 2020, Commercial Court).
[7] Sarah Green and Aidan Wills, ‘The Legal Status of Cryptoassets’ (2021) Modern Law Review 84(6) 1293.
About the author
Habiba Ahmed is an unregistered barrister, called to the Bar in 2025. Her principal areas of interest include data protection, intellectual property, digital estate planning, and the emerging legal issues arising from technological innovation. She has a particular interest in the intersection of law and technology, regularly participates in advocacy and mooting, and is committed to making complex legal issues accessible to a wider audience.
