Joris DeeneAnyone who wishes to manage a loved one’s emails, photos, social media accounts, and crypto wallet after their death will find that Belgian law currently lacks specific provisions on this matter. The European Law Institute’s Model Rules on Succession and Access to Digital Remains therefore propose that economic digital assets be governed by ordinary inheritance law and that personal digital data be subject to a separate, temporary right of access that does not transfer ownership. The instrument was approved by the ELI Council on June 24, 2026, by the members on July 16, 2026, and published on August 28, 2026. It is not a law, but a blueprint for European and national legislators.
In short:
- The model rules divide the digital estate into two categories: digital assets (a crypto wallet, a domain name, a monetized channel) are inherited as personal property, while personal digital remnants (emails, chats, an AI replica of the deceased) never become the property of the heirs but are subject to a right of access.
- That right of access expires ten years after the person's death; the service provider must retain the data for five years and may not charge a fee for exercising that right.
- According to the model rules, standard terms and conditions of a platform that prevent the transfer or access are invalid, unless the platform proves that the provision was individually negotiated with the deceased.
Why Digital Legacy Is a Gray Area Today
In Belgium, Book 4 of the Civil Code (BW) Succession. Article 4.3 of the BW provides that the heirs designated by law automatically take possession of the decedent’s property, rights, and legal claims. A subscription, cloud storage service, or social media account is, legally speaking, a contract with a service provider. According to the letter of Article 4.3 of the Civil Code, the contractual rights associated with that account therefore pass to the heirs, unless the contract is inextricably linked to the person of the deceased.
In practice, it’s not that simple. Virtually every platform stipulates in its terms of service that the account is personal and non-transferable, that it will be closed or set to memorial status upon the user’s death, and that surviving relatives can, at most, request its deletion. An heir who sends a death certificate and a certificate of inheritance to a U.S. service provider is often asked to provide certified translations and then receives a standard refusal. In such cases, the contract dictates the fate of the estate, not inheritance law.
There's a second problem as well. The General Data Protection Regulation (GDPR) explicitly protects only living individuals in Recital 27, and leaves it up to the member states to establish rules regarding the data of deceased persons. France, Italy, Spain, and Portugal have done so. Belgium has not: the Act of July 30, 2018, on the Protection of Individuals with Regard to the Processing of Personal Data does not contain any provision regarding the personal data of deceased individuals. Upon death, the Belgian data subject is therefore no longer covered by data protection, while the people with whom he corresponded remain protected as usual.
A third obstacle is the confidentiality of communications. Article 124 of the Act of June 13, 2005, on Electronic Communications prohibits anyone from intentionally accessing electronically transmitted information that is not personally intended for them, without the consent of all persons involved. An heir who reads through the email inbox of a deceased parent is reading messages addressed to that parent, not to him. No Belgian court has yet ruled on whether he needs the consent of each sender to do so. We discussed these questions earlier in the blog. Can heirs access the deceased's digital accounts?; the answer has not become any clearer since 2021.
What the model rules actually entail
The European Law Institute is an independent European research institute that drafts model laws and principles for European and national legislators. The Model Rules on Succession and Access to Digital Remains were drafted by a project team led by Edina Harbinja and Antoine Eigenmann and consist of eleven articles with commentary. They are intended to be incorporated into national legislation or to serve as a starting point for a European initiative.
The key concept is the “digital remain.” A digital remain is any item in digital form to which the deceased had a right, or any digital record of a right or interest that he held during his lifetime, whether held directly or through an intermediary (Article 2, paragraph 1). This includes the contents of an account, as well as files on the deceased’s own laptop or hard drive. Databases maintained by third parties for their own purposes—such as a hospital’s patient records or a bank’s customer files—are outside the scope of this provision, as the deceased held only the rights of a data subject with respect to such databases (Article 1, paragraph 3).
Within that framework, the model rules distinguish between two categories. A digital asset is a digital remnant that is subject to control, enjoyment, or use and that can be transferred, regardless of whether the underlying right is a property right, a contractual right, or any other right (Article 2, paragraph 2). A personal digital remnant is a digital remnant that, by its nature or function, reflects the personality, identity, or private life of the deceased or is inextricably linked thereto, including the deceased’s personal data and digital representations that can evoke or mimic the deceased’s likeness, voice, presence, or behavior, including through generative systems (Article 2, paragraph 3).
Regime 1: Inheriting Digital Assets as Personal Property
For digital assets, Article 4 opts for what the drafters call “succession neutrality”: the inheritance law that applies to movable property, with the adjustments required by their digital nature. A balance in a Revolut account, the private keys to a crypto wallet, a registered domain name, or a YouTube channel generating ad revenue will therefore pass to the heirs just as a savings account or a work of art would.
The service provider is subject to three obligations in this regard: to provide mechanisms to enable the transfer, to provide clear and enforceable tools or platform rules, and to give timely notice upon termination of the service so that the representatives of the estate can export the assets in a commonly used format (Article 4, paragraph 2). Anyone who is not a service provider but does control the device—for example, an employer with a company laptop on which the deceased stored personal files—must enable the transfer of those files without having to hand over the device (Article 4, paragraph 4).
The most significant provision is Article 4, paragraph 3. Any clause in the terms and conditions that prevents or hinders the transfer of digital assets is invalid, unless it was individually negotiated with the deceased. The burden of proof for such a negotiation lies with the service provider. For a platform with hundreds of millions of users and a single set of terms of service, that proof is impossible to provide in practice.
Regime Two: A Right of Access That Does Not Transfer Ownership
Personal digital assets are not inheritable. The heir does not become the owner of his mother’s email account, and certainly not of the chatbot that mimics her voice. Instead, there is a right of access. The right of access is the right to consult, use, disclose, have preserved, correct, obtain a copy of, transfer, and delete the contents of personal digital remains (Article 2, paragraph 6). It is therefore broader than merely viewing the content, but it remains a right to the content itself—not a right to act in the deceased’s stead or to continue operating the account.
The deceased’s wishes take precedence. During his or her lifetime, the deceased may stipulate that all or some of his or her personal digital remains be deleted after death (Article 5), he may designate one or more persons authorized to exercise the right of access, and he may exclude or restrict access for certain heirs, provided that such exclusion is specific and clearly identifies the data in question (Article 7, paragraphs 3 and 4). These instructions may be included in a will, in the platform’s own estate planning tool, or in a written statement to the service provider. In the event of conflicting instructions, the most recent one prevails, provided that its date can be reasonably established (Article 8, paragraph 2). The platform may rely on the most recent instruction in its own tool, unless it is notified of a later instruction within six months of the death (Article 8, paragraph 3).
If the decedent has not made any provisions, the right of access is granted to the statutory heirs in the case of an intestate estate, to the general legatees in the case of a will, and to the executor or the administrator of the estate (Article 7, paragraph 1). Two choices stand out. Specific legatees, who receive only a specific item, are deliberately excluded to prevent someone who inherits a painting from also being able to read the private correspondence associated with it. And the State, which in Belgium can claim an unclaimed estate, never gains access to personal digital remains (Article 7, paragraph 1, b). The drafters aim to prevent intimate archives from falling into the hands of the government.
If there are multiple beneficiaries, none of them may unilaterally delete or modify the information. If one of them unreasonably refuses to give consent, the others may ask the court to make a decision in lieu of that consent (Article 7, paragraph 7). For two children who cannot agree on their father’s Facebook profile, this offers a concrete solution.
Five years of storage, ten years of access, no fees
The model rules establish two time periods. During the first five years following death, the service provider must retain the deceased’s personal digital assets, unless the deceased had requested their deletion or the beneficiaries request it (Article 9, paragraph 1). Starting in the fifth year, the service provider may delete the data, unless a beneficiary has requested continued retention or a third party has filed a legitimate claim (Article 9, paragraph 2). Ten years after death, the right of access expires permanently (Article 6, paragraph 3). During those ten years, the platform may not charge a fee for exercising the right of access or for storage (Article 6, paragraph 4). Here, too, platform terms that impede access or the implementation of the directives are invalid unless individually negotiated (Article 6, paragraph 5).
Miscellaneous Cases: A Manuscript Containing Medical Information
Digital life rarely fits neatly into two categories. An iCloud account contains business documents, family photos, and private messages all at the same time. A single draft manuscript can be a copyrighted work while also containing sensitive medical information about the author and a living relative. For such mixed cases, Article 3 establishes a priority rule: first, the access regime is applied to the personal layer; only then does the asset pass to the heirs under inheritance law. The beneficiaries can therefore first remove the medical passages, after which the copyright to the manuscript passes to the heirs for publication.
If the personal element is merely incidental, that intermediate step is skipped. The example given in the commentary is a domain name for which the registration system contains the name, address, and phone number of the deceased: these administrative details do not alter the economic nature of the asset, and the laws of inheritance apply immediately (Article 3, paragraph 2).
With regard to copyright, this is consistent with Belgium’s existing legislation. According to Article XI.166 of the Code of Economic Law (WER) Copyright continues for seventy years after the author’s death for the benefit of the person designated by the author or, in the absence of such a designation, for the benefit of the author’s heirs. Article XI.171 WER adds that moral rights are also exercised by the heirs or legatees after the author’s death, unless the author has designated someone else for that purpose. Under Belgian law, an unpublished novel stored on a hard drive is therefore already considered an inheritable asset; the model rules do not change this, but they do introduce a privacy filter before the work is exploited. Our page on copyright further explains property rights and moral rights.
The AI replica of the deceased
The authors call them “deadbots” or “ghostbots”: chatbots trained on the messages, voice, and images of a deceased person that continue to converse with the bereaved as if the person were still alive. Article 2, paragraph 3, subparagraph b explicitly classifies such digital representations as personal digital remains. A deadbot, therefore, cannot be inherited. The beneficiaries of the right of access may retain or delete it, but they do not acquire the right to commercially exploit the likeness of the deceased or to impersonate the deceased.
This is consistent with Belgian portrait rights law. Article XI.174 of the WER provides that no one may reproduce a portrait or communicate it to the public without the consent of the person portrayed or, for a period of twenty years following that person’s death, without the consent of his or her successors in title. The Belgian right to image So the person survives for two decades, and an AI replica that uses his face is a reproduction of that portrait. In addition, Article 50 of the AI Regulation Anyone who distributes synthetic images, audio, or video of a real person is subject to a duty of transparency, even when it is a parody, as we explained in the blog Should you label a deepfake if it's clearly a parody?. Our overview of the legal framework for artificial intelligence puts those obligations into context.
Third Parties and Cross-Border Cases
Emails and chats always have at least two authors. Article 10 therefore also grants rights to third parties. Anyone who demonstrates a legitimate interest—for example, through ongoing legal proceedings or a contractual obligation—may request access to the content from the heir or beneficiary. Conversely, anyone who demonstrates that continued access or retention infringes upon their rights may request the removal of the content or a restriction on access. If the heir refuses, and if the retention would seriously and disproportionately infringe upon the third party’s rights, the third party may contact the platform directly; the platform must provide a written justification, and its decision is subject to judicial review (Article 10, paragraph 3). Furthermore, the processing of third-party data by the heirs remains subject to the GDPR as soon as it goes beyond purely personal or household use (Article 10, paragraph 4).
With regard to private international law, the model rules deliberately adopt a cautious approach. They do not contain their own conflict-of-laws rules and do not affect existing instruments (Article 11). Who inherits the digital assets is determined by the Succession Regulation, as a general rule, the law of the last habitual residence. The contract with the platform, however, remains governed by the law selected in the terms of use, in accordance with the Rome I Regulation, and the choice of forum generally remains valid under the Brussels Ibis Regulation. A consumer’s heirs do, however, retain the consumer protection provided by Article 6 of Rome I and Article 17 of Brussels Ibis, so that they may file a lawsuit in their own court. The commentary itself acknowledges that this choice does not extend the protection afforded to heirs and that mandatory referral rules may be desirable in the future.
Legal analysis and interpretation
Does the right of access conflict with the Belgian tradition of diaries and letters?
The German Bundesgerichtshof ruled in the Judgment of July 12, 2018 (III ZR 183/17) that the parents of a girl who died at the age of fifteen should be granted access to her entire Facebook account, including chat messages. According to that ruling, the contract with the social media platform passes to the heirs in its entirety, and the court rejected a distinction between property-related and strictly personal content: after all, diaries and letters on paper are also inherited without restriction. Belgian Article 4.3 of the Civil Code is based on the same principle, meaning that a Belgian court could follow the German precedent today.
The model rules explicitly take the opposite approach. The commentary cites the German outcome and counters that applying property and inheritance law to a person’s “informational body” undermines human dignity. That is a policy choice, not a mandatory inference from existing law. Anyone who wishes to implement this in Belgium must accept that an email archive is treated differently from a box of letters in the attic, and that the heir—who is permitted to read the letters left behind—is granted a separate and temporary right with regard to the email inbox. For a surviving relative who wishes to understand the circumstances of a death—such as the German parents—the right of access amounts to the same thing in practice: even under the model rules, they will be able to view the contents.
Ten years is a short time compared to twenty and seventy
The ten-year limitation period in Article 6, paragraph 3 was chosen in light of the diminishing need to protect the privacy of a deceased person and the burden on platforms that would otherwise have to serve as perpetual archives. Compared to Belgian time limits, this is relatively short. The right of publicity under Article XI.174 of the WER lasts twenty years after death, while the copyright under Article XI.166 of the WER lasts seventy years. A grandchild who, fifteen years after his grandfather’s death, wishes to retrieve the family photos from his grandfather’s cloud account would be too late under the model rules, even though, as the successor in title, he could still prohibit the reproduction of that grandfather’s portrait. These differences are justifiable, as the right of access serves a different purpose than the right to prohibit, but a Belgian legislator adopting the model rules would be well advised to align the three terms.
The platform terms and conditions can be challenged as early as today
The invalidity of non-negotiable transfer prohibitions in Article 4, paragraph 3, may seem revolutionary, but Belgian law already provides some guidance. Article VI.83 of the WER declares a series of terms in contracts between businesses and consumers to be unlawful, and Article 5.52 of the Civil Code has provided, since the introduction of Book 5, that any clause that cannot be negotiated and that creates a manifest imbalance between the rights and obligations of the parties shall be deemed not to have been written. A clause that causes a crypto wallet or a monetized channel to be forfeited to the platform upon the user’s death may be subject to this test. What is missing today is a court ruling on the matter and the burden-of-proof rule in the model rules, which requires the platform to demonstrate that individual negotiation took place.
The secrecy of communications remains an unresolved issue
The model rules do not resolve the conflict with the right to privacy of communications. Article 124 of the Act of June 13, 2005, prohibits the interception of electronic communications not intended for the recipient without the consent of all parties involved. In 2018, the Bundesgerichtshof ruled that German telecommunications secrecy does not preclude the heir, because the heir takes the place of the addressee. No such ruling exists for Belgium. Any right of access introduced by the legislature should therefore explicitly stipulate that the beneficiary is considered the addressee for the purposes of Article 124. Without such clarification, an heir who opens a mailbox theoretically remains at risk of committing a criminal offense.
Specifically, what does this mean?
For anyone who wants to manage their own digital legacy. The model rules are not yet law, but the tools they rely on already exist: the digital estate policies of Apple, Google, and Meta, and the will. Anyone who designates an executor in a will today can also instruct that person to have certain accounts deleted or preserved, and can designate a separate person to handle personal correspondence. Date each instruction, because the model rules give precedence to the most recent one, and platforms rely on the instructions provided in their own tools.
For heirs and surviving family members. Take inventory of the accounts and the assets they contain. A crypto wallet, a domain name, or a revenue-generating channel is part of the estate and must be included in the tax return. Caution is advised regarding personal correspondence as long as the legislature has not clarified the law on the confidentiality of communications; limit your review to what is necessary for the settlement. If you encounter a platform that denies all access based on its standard terms and conditions, the first thing we’ll check for you is whether that provision is valid.
For platforms, cloud providers, and Belgian startups. Anyone building a service today in which users store data or assets would be wise to include a death procedure, an estate contact, and an export function right from the start. The model rules make this mandatory, and a service that stores data on deceased individuals inevitably also processes data on living third parties, which is a lawyer specializing in GDPR It is best to incorporate this into the processing activities and retention periods from the outset.
For notaries and liquidators. The sequence set forth in Article 3 can be used as a working method, even in the absence of a law: first, assess the personal aspect; then, carry out the deceased’s instructions; and finally, transfer the assets. Anyone who finds a manuscript, a photo library, or a business email account in an estate can thus prevent sensitive information from reaching all heirs unfiltered.
Frequently asked questions (FAQ)
Can heirs in Belgium gain access to a deceased person's accounts?
There is no specific Belgian rule. Article 4.3 of the Civil Code provides for the transfer of the deceased’s contractual rights to the heirs, but the terms of use of most platforms preclude such a transfer, and the law of June 13, 2005, prohibits the reading of communications not intended for the reader. In practice, access today depends on the platform’s procedures and on whether the deceased designated an estate contact.
Can a crypto wallet be inherited?
Yes. The private keys of a crypto wallet grant control over a transferable asset and therefore constitute an asset that forms part of the estate and must be included in the tax return. The model rules confirm this by classifying digital assets under the inheritance law governing movable property and requiring platforms to facilitate the transfer. The practical problem remains access: without keys or a recovery phrase, no one can access the funds.
After my father passes away, can I read his emails?
Under Belgian law, this is currently unclear. The emails were addressed to your father, and Article 124 of the Act of June 13, 2005, prohibits the intentional access to electronic communications not intended for you without the consent of all parties involved. As an heir, however, you do assume his legal status. Under the model rules, as a beneficiary, you would have a right of access for ten years, subject to your father’s instructions and the rights of his correspondents.
Can someone inherit a deceased person's AI chatbot and use it for commercial purposes?
According to the model rules, no. A chatbot that mimics the personality, voice, or face of the deceased is a personal digital remnant that is not inheritable; the beneficiaries may only retain or delete it. In Belgium, Article XI.174 of the WER also prohibits the reproduction of a portrait without the consent of the successors in title for twenty years after death, and Article 50 of the AI Regulation imposes a transparency requirement for synthetic images and audio of an existing person.
Conclusion
The European Law Institute’s model rules provide European and Belgian lawmakers with a workable blueprint: digital assets are inherited, personal data and AI replicas are granted temporary access rights, and platforms’ standard terms and conditions are set aside. Under Belgian law, none of these rules currently exist. Heirs must rely on Article 4.3 of the Civil Code, the doctrine of unfair terms, and the platforms’ own procedures, while the secrecy of communications and the lack of postmortem data protection continue to create uncertainty.
ICT Rechtswijzer is the knowledge platform of the Intellectual Property, IT Law, AI Law, Data Protection, and Media Law department at Everest Advocaten, led by Joris Deene, Esq. Our attorneys assist heirs and estate administrators in gaining access to a deceased person’s accounts and digital assets, and advise platforms and cloud service providers on developing a procedure for handling death that respects data protection and the confidentiality of communications.
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