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Unfortunately this is not a clear cut answer and legal advice should be sought.
Knowing someone's phone PIN or email password does not automatically give you the right to access the data on or in it.
Under the Administration of Estates Act 1925, an executor has a legal obligation to access, value and administer the assets of a deceased estate. In practice, this means that the executor is responsible for taking care of all the physical assets of the estate during the process. But it is more of a sticky situation in relation to digital assets.
Digital assets are not currently defined in English law, but can include assets such as social media accounts, photographs stored in the iCloud on a computer, cryptocurrency e.g. Bitcoin), bank accounts, medical records, digital music libraries etc.
Theoretically digital assets should be treated like any other form of property. However, there are key notable differences. Unlike more traditional assets, there is often no physical documentation that proves the deceased’s ownership of the digital data and it becomes necessary to access the deceased’s online accounts in order to prove ownership.
Before any executors consider accessing a deceased’s digital devices, they should draw their attention to the Computer Misuse Act 1990 (“the Act”). Currently, the Act makes it a criminal offence (a fine or an imprisonment for a term not exceeding two years or both) for anyone to gain unauthorised access to any computer device, and this includes using another person’s password without their permission or prior authorisation. Undoubtedly, this poses an obstacle for personal representatives or executors to distribute any digital assets in accordance with the deceased’s wishes.
A further significant issue which executors should consider when faced with digital devices on death is that many online service providers have their own terms and conditions dictating what happens when a user dies. There are different rules for different digital providers and a prudent executor should check first before determining whether access on behalf of the deceased is permitted.
We have recently been made aware of issues with executors gaining access to a deceased’s devices. It is important to note that organisations such as Facebook and Apple have systems in place for bequeathing digital assets. For instance, Apple’s (current) privacy agreement is that it only allows access to data, photographs and notes stored in its iCloud to a named legacy contact. According to Apple, this implementation strongly protects account holders’ data from falling into the wrong hands. As a result, this could mean that it is impossible to unlock an Apple device without the log in ID and password even if executors make a request to Apple with a court order, such as a Grant of Probate.
The Law Commission has recently acknowledged the challenges posed by accessing a deceased’s digital assets and consequently, reforms such as Digital Devices (Access for Next of Kin) Bill (“the Bill”) are currently underway. The aim of the Bill is to allow authorised individuals, such as executors or personal representatives, to access the digital devices of the deceased more easily and also creates exceptions to the Act. However, the Bill is still only on its second reading in Parliament so is not law yet.
Overall, an executor’s right to access the deceased’s electronic devices still remains very much a grey area. Moreover, as a person making their own will, the issue of digital devices is here to stay yet remains a tricky area. If you find yourself faced with this situation, you should seek specialist legal advice first, before proceeding.