In the digital age, a person’s existence is often intertwined with their virtual identity. With so much of your life existing in the cyberspace, it is critical to consider your digital assets when making your estate plan, in order to ensure your digital legacy is handled according to your wishes. Proactive planning will also help your personal representative more easily navigate the legal and administrative hurdles associated with accessing digital assets.
Digital Assets
What are Digital Assets?
Digital assets are electronically stored information, including but not limited to:
- social media and email accounts;
- photos, videos and documents in cloud storage;
- e-books and other digital media;
- online subscription services;
- digital currencies;
- loyalty program awards from airline reward miles to digital coffee cards; and
- non-fungible tokens.
Accessing the Digital Assets of a Deceased Person
It is important to remember that ownership of the physical device on which a digital asset is stored does not necessarily mean a right of access to the digital asset itself. Privacy laws and platform-specific terms of service restrict the ability of third parties to access the digital assets of a deceased person.
In Canada, the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (“PIPEDA”) limits the ability of private-sector organizations to disclose the personal information of its users without the individual’s knowledge and consent.[1] These limitations remain in place for twenty years after the person’s death (see PIPEDA section 7(3)(h)(ii)), posing difficulties for access to crucial digital assets and timely administration of an estate.
Estate Planning for Digital Assets
Consider taking the following steps to secure your digital legacy:
Create a List of Your Digital Assets
One of the first hurdles a personal representative faces when administering digital assets is finding out what digital assets the deceased owned. To ensure none of your treasured virtual possessions are overlooked or lost, you should consider keeping a list of your digital assets in a secure place and updating it regularly. This list can include usernames, passwords and specific instructions that you may have for the asset.
Encrypted password managers can be an easy way to store and organize your login information for different apps and websites. It can also act as a “one-stop shop” for your personal representative after your death. For example, password manager 1Password has an Emergency Kit, a document which they recommend users store with their wills, on which users can specify where their account is located, the email address they used, and their Secret Key. Access to such information and the deceased’s password manager account will provide the personal representative with a comprehensive overview of the deceased’s digital assets.
Appoint a Digital Executor
Navigating the legal and administrative landscape of the cyberspace can be a complex and arduous process. You may want to consider appointing a digital executor, a person different from your personal representative, to specifically manage your digital estate. In doing so, you should consider whether the appointee has the necessary technological know-how to handle your digital assets and accounts.
Once you have appointed a digital executor in your Will, you should have a conversation with that person about how to access your digital assets and your specific wishes for your digital legacy.
Utilize Tools Provided by Online Platforms
Many digital service providers now have tools that help users plan for their digital afterlife. For example, Google’s Inactive Account Manager allows users to designate a third party who will receive specific account data in the event of the user’s death or inactivity. Similarly, Meta allows users to designate a Legacy Contact who can manage the user’s profile after their death to post tributes and download limited data. However, not all platforms have these tools, and some may require a court order before they will release the information associated with a deceased user’s account.
If you have any questions about how to plan for your digital legacy, please contact Mary Hamilton, K.C., Sabrina Ouyang or any other member of our Wills, Estates + Trusts Group.
[1] Personal Information Protection Act, S.B.C. 2003, c. 63 (“PIPA”) applies to private sector organizations operating solely within British Columbia.
Subscribe to RSS Feed