ELI Model Rules on Digital Remains: A Practical Read

Europe has spent a decade with no common answer to a simple question: when someone dies, who may read their messages? National laws diverge, the GDPR protects only the living, and platform terms fill the gap by defaulting to refusal. The Model Rules published in August 2026 are the first attempt to answer it comprehensively rather than country by country, and even as a non-binding text they are the clearest available statement of where European thinking is heading.

Conclusion: the useful part is the split, not the deadlines

The headline numbers, ten years of access and five years of retention, are the least important part of the document, because neither is in force anywhere. What matters is the structural move: separating assets that can be inherited from content that can only be accessed. That distinction applies whether or not any parliament adopts the text, because it is the same distinction families run into when they discover that inheriting a laptop is not the same as being allowed to read what is on it.

Two regimes, and why they are not interchangeable

• Digital assets: transferred — A crypto wallet, a domain name, a monetised channel, a balance held by a platform. These carry economic value and pass through ordinary succession law, with title moving to heirs or to the estate. Ownership transfers, which is what makes valuation and distribution possible
• Personal digital remains: accessed — Emails, messages, photos, and AI replicas of the deceased. These never become the property of heirs. Instead, a safeguarded right of access lets a defined category of people reach specific content for a limited purpose and a limited time
• The difference in one sentence — One is about who owns the thing; the other is about who may look at it, for how long, and under what conditions. Confusing the two is the single most common error in digital estate planning

The rules in brief

The instrument sets out eleven articles with commentary, drafted by a project team led by Edina Harbinja and Antoine Eigenmann, with input from practitioners and bodies including STEP. A digital remain is defined broadly to cover any item in digital form to which the deceased had a right, including the contents of an account and files on a personal drive. Access lapses ten years after death, providers must retain the data for five years and may not charge a fee for exercising the right, and standard terms that prevent transfer or access are invalid unless the platform can show the clause was individually negotiated with the deceased.

Mixed cases are where the real work happens

Most estates are not cleanly one category or the other. The obvious example is an inbox that holds both family correspondence and the invoices that prove what a business is worth. The Rules require the privacy interest to be protected first and the deceased wishes to be honoured before economic content moves to successors, which implies an extraction step rather than a handover of the whole account. That is a sensible model even outside Europe, and it is worth building into instructions now: say which folders, which accounts and which categories of content may be looked at by whom. The commercial side of the same problem is set out in licensed versus owned digital assets.

Third-party privacy is the hard constraint

A deceased person inbox is not only their own record. Every message in it was written by someone else who is usually still alive and still protected by data protection law. This is the argument that has limited access rights in several national statutes, and the Model Rules handle it by framing access narrowly: specific categories, specific purposes, a defined group of people. For a family, the practical implication is that blanket requests for a whole mailbox are the least likely to succeed. Narrow, documented, purpose-specific requests are far more likely to be honoured, by a provider or by a court.

What to do now, before any of this is law

• Step 1: split your own inventory the same way — Two columns: assets with value that should be transferred, and content that should be looked at but not owned. The exercise takes an hour and exposes immediately which items you have never decided about
• Step 2: separate the people, not just the data — The person who should receive a wallet is often not the person who should read your letters. Naming one executor for everything is the default that produces the worst outcome in both directions
• Step 3: write the wishes down explicitly — Under the Model Rules the deceased expressed wishes are decisive in mixed cases and AI-replica questions. Silence is not a neutral position, it hands the decision to whoever interprets the platform terms
• Step 4: record the location of access, not the data itself — Vaults and sealed instructions beat copies scattered across devices. See encrypted digital will safety for why a plaintext copy usually defeats the purpose
• Step 5: decide what should not be accessed at all — The most useful instruction many people write is the negative one. If nobody is told that a category is off limits, a broad request will eventually be granted by someone

Where this sits against RUFADAA and national law

The US RUFADAA model solves access by priority: platform tool first, then the will or power of attorney, then the terms of service. Its weakness is that the highest tier is controlled by the platform. The Model Rules invert that emphasis by making the deceased wishes decisive and platform clauses presumptively invalid unless individually negotiated, which is a genuinely different starting point. Neither approach solves the cryptographic problem, however: a right of access does not produce a seed phrase, and a platform that cannot decrypt user content cannot comply with an access order either. That gap between legal right and technical reach is the same one described in what a legacy contact cannot access, and it is where TimeWill sits: encrypted storage plus a defined release trigger that a named person can actually open.

Disclaimer

This article is general information, not legal advice. The Model Rules are a non-binding academic instrument and have not been enacted by any legislature. Access rules for deceased persons differ by country, data protection law continues to apply to third parties, and platform policies change without notice. Confirm the position for your own jurisdiction with a qualified lawyer before relying on anything described here.