Increasingly clients are asking me how to deal with their “digital assets” in their estate planning. Broadly speaking, your digital assets may include:
1) Your online media accounts – ex. iTunes
2) Your digital devices – ex. computers, tablets and smart-phones
3) Your e-mail accounts
4) Your social network profiles – ex. Facebook, Twitter, Instagram
5) On-line banking and investing
6) Other assets such as gaming accounts, and other new platforms that arise in the future
Normally, all of your property vests with your Executor upon your death. However, certain contractual rights do not usually pass to the Executor unless the contract specifically provides for that. Consider this following news story:
[Canadian Estate lawyer Daniel Nelson] said providers need clear policies when it comes to dealing with digital property and access, and Canadian laws need to be more clear about who owns or controls what is put online after someone dies.
"When it's digital property it gets murky. While that photograph on Google cloud or on Facebook belongs to you, the access belongs to the service provider," Nelson said.
"It would be useful for legislation to clarify that … executors have authority to log into accounts and extract digital assets, including changing passwords."
His advice is that until laws are updated and service providers change their policies, Canadians should include clauses in their wills that allow the executor to deal with digital assets.
Until there is clearer legislation in this area in Canada, we are recommending that a specific Digital Asset clause be added to our clients’ wills. The clause will allow your Executor to handle your digital assets and access your passwords. We will provide a separate worksheet that clients can store with their will as a memorandum. This memorandum can detail your private information such as account numbers and passwords, and your instructions for handing these assets. Your wills and memorandum must be stored in a private and secure place such as a safety deposit box or sealed within your lawyer’s file.
Please contact us if you have any questions about digital assets.