Scots Law must prepare for the rise of ‘digital executors’, writes Rob Aberdein.

It’s often said the law lags behind technology. In the case of digital assets and estate planning, it’s not just lagging, it’s miles behind – waving a quill at a passing Tesla.

Much of our financial, personal and professional lives now reside online. Yet, as a profession, we continue to approach wills and executries with assumptions rooted in a pre-digital world.

To serve modern clients, and uphold the integrity of estate administration, we need to recognise the “digital executor” is no longer theoretical, but an essential part of the process. The only question is whether the law will support them.

Ask any private client solicitor, and they’ll tell you: digital assets are now showing up in most estates. Sometimes, it’s straightforward; an online bank account or digital wallet.

More often, it’s murky: a cryptocurrency portfolio with no clear recovery key; a lifetime of photographs stored in iCloud; online businesses with subscription income; NFTs; digital art; social media revenue; Dropbox folders of intellectual property.

These cases are increasingly standard, yet many executors (professional and personal alike) find themselves locked out, legally unclear, or entirely unaware of their existence. That’s a risk, not just to efficient administration, but to client trust in the system.

Scotland has yet to define digital assets properly in the context of succession. There’s no statutory right of access for executors, who rely on fragmented case law, patchy terms of service, and goodwill of multinational platforms, many operating under US privacy legislation.

Contrast this with the States, where the Revised Uniform Fiduciary Access to Digital Assets Act gives executors specific rights to access digital accounts, provided the deceased opted in. That framework isn’t perfect, but it offers clarity. Scotland has nothing of the sort.

In practice, this means assets go unrecovered. Families are left in limbo. Executors face liability for failing to account for holdings they couldn’t even access. It’s legally unsatisfying and emotionally distressing.

Until the law catches up, firms need to lead the way and change the conversation. Ask clients explicitly about digital assets during will preparation. Encourage the use of secure password managers, or even better, offer a proprietary firm digital vault. Talk about data legacy and digital presence, not just property and pensions.

We should also be updating templates, revisiting checklists, and training teams to spot red flags. Most importantly, we must prepare clients for the fact that digital access isn’t guaranteed, and the only way to control it is to plan for it.

Some firms are trialling digital asset inventories as part of their onboarding process. Others are looking at naming separate “digital executors” for estates with significant online holdings. These are smart, sensible interim steps.

But this isn’t just about professional vigilance. It’s about legislative reform. We need a statutory definition of digital assets in succession. We need a system that respects data protection but doesn’t trap assets behind clickwrap agreements. We need to equip executors with clear rights and obligations to reflect how people actually live (and die) in 2025.

The next generation of estates will be hybrid. A mix of bricks and clicks, passwords and paper deeds. If the law doesn’t evolve, it will fail to reflect the lived experience of Scottish citizens. And that failure will erode trust in a system we can’t afford to compromise.

This article was written by Rob Aberdein, Group Managing Director at Simpson & Marwick and published in the Scotsman on 18 August 2025.