What It Means for Wills, Trusts, and Estate Planning
The Property (Digital Assets etc) Act 2025, which came into force on the 2nd of December 2025, delivers long awaited clarity on the legal status of digital assets. Although short in length, the Act confirms that certain assets existing entirely in electronic form, such as cryptocurrencies and NFTs, can be owned as personal property. This has immediate consequences for Will writers, attorneys, and probate practitioners.
Digital assets are no longer a fringe interest. Many clients now hold value through online investment platforms, gaming economies, crypto wallets and blockchain marketplaces. Until now, uncertainty around how these assets fit into traditional property categories presented real risk: assets could be overlooked during estate planning, vulnerable people could be exploited through mismanagement, and executors could face obstacles recovering misappropriated values. With the new Act, advisers have firmer footing.
Why the Act Was Needed
Historically, English law has only recognised only two types of personal property: “Choses in possession” physical items you can possess and “choses in action” rights enforceable through legal action. Digital assets blurred and stretched these categories. They can be traded, bought, and controlled exclusively by individuals, yet they have no physical form and are not always contractual rights against a service provider.
Courts began to treat some digital assets as property in order to grant injunctions or freeze stolen crypto, but the law lacked certainty. Without statutory confirmation, there was a risk that some assets would sit in a legal limbo.
The Act addresses this by confirming that property is not limited to physical or enforceable rights, allowing courts to recognise a distinct category of digital assets where appropriate. Importantly, the Act does not attempt to exhaustively define digital property. Instead, it leaves space for courts to adapt to changing technology. This flexibility ensures that future innovations, not just current block chain assets, can be properly treated.
What Digital Assets Are Covered?
The Act focuses on legal principle rather than a list. It aligns with the Law Commission’s concept of “data objects”: assets that exist electronically, can be controlled exclusively, can be transferred.
This will include, in practise:
- Crypto currencies such as Bitcoin, Ethereum and stablecoins
- Non-fungible tokens (NFTs) representing digital art, collectible rights.
- Tokenised assets, where real world value (e.g. shares or artwork) is represented digitally.
- In-game or platform tokens that have market value or can be traded
However, the Act does not automatically make everything online an inheritable asset. Many digital accounts are subject to usage licenses rather than ownership rights. For example:
- Social media accounts cannot usually be inherited.
- Email accounts may not be transferable.
- Subscription libraries (e.g. films, music) are often only licensed to the user.
The Act recognises property rights, but it cannot override platform terms of service. Advisers must therefore continue to check contractual conditions as part of estate planning.
Implications for Wills and Estate Planning
The most immediate impact of the Act is the removal of uncertainty. Digital assets now clearly form part of a person’s estate can be gifted, included in residue, held in trust, and valued for tax planning. This clarity also strengthens remedies where assets are hidden or misused. Digital assets have already been taxable under HMRC guidance, the Act reinforces their treatment as property for inheritance tax purposes.
For estate administration, this means:
- Executors can pursue stolen digital assets with proprietary legal remedies.
- Assets are traceable and recoverable more easily.
- Non-disclosure of digital holdings becomes more serious in probate disputes.
For trustees, the legislation supports their duty to manage digital value responsibly. A trustee holding cryptocurrency must now take appropriate steps to secure private keys, asset investment risk, and record decisions rationally. Neglecting digital assets could attract claims in the same way as mishandling shares or real property. The Act does not regulate custody, security, or valuation of digital assets, which remain matters for professional standards and judicial development.
Practical Action Points for Will Writers
The Act signals a shift in best practice. Will writers should ensure they are treating digital assets as a standard estate consideration. That involves asking the right questions, drafting appropriately, and guiding clients on safe management of these assets post-death.
When taking instructions, consider asking:
- “Do you own any digital assets such as cryptocurrency, NFTs, digital art, tokens, or online investments with transferable value?”
- “Where are these held? (e.g. exchanges, hardware wallets)
When drafting Wills review:
- Whether to make specific gifts (e.g. cryptocurrency by quantity or percentage)
- Whether to direct sale and distribution of proceeds, especially due to volatility
- Executor powers, ensuring they include the ability to hold, trade and secure digital assets.
Advise clients on safe access planning, for example by encouraging:
- A secure inventory of holdings
- Access to instructions kept outside the Will
- Use of encrypted storage or custody services
- Clear guidance for executors on where to locate information
Passwords, PINs, seed phrases, and private keys must never be written in a Will, as Wills become public documents after probate.
LPAs should also be updated where clients hold significant digital value. Attorneys may need guidance on risk tolerance and may require express authority to manage digital holdings responsibly.
A Foundation for the Future
The Property (Digital Assets etc) Act 2025 is not the end of the story. It does not resolve every question about digital ownership or cross-border enforcement. Instead, it establishes a vital foundation: digital assets are property. The detail will now develop through judicial decisions, market practice, and professional standards.
The message is straightforward, digital assets are mainstream. Clients hold them now, and many more will do so in the years ahead. Our role is to recognise them, plan for them, and ensure they are protected, transferred, and administered with the same care we give to every other form of property.
