Digital Asset Estate Planning

Marissa Berry, Calgary

Due to the development of technology, there has been tremendous growth in personal ownership of digital assets.  As part of the estate planning process, it is important to consider how digital assets are disposed of, both at death and upon incapacity.  There are numerous types of online digital assets, including: blogs, photo-sharing accounts and domain names.  There are also digital assets in the form of devices such as computers or smartphones which can store any number of types of files and content.

An individual can appoint an attorney to manage his or her assets during incapacity through a power of attorney and an executor to administer his or her estate on death through a Will.  Such legal representatives should be informed of what digital assets an individual owns and also the individual’s intentions with respect to how these assets are to be dealt with on incapacity or death.  To enable efficient administration, legal representatives should be granted appropriate powers specific to digital assets in estate planning documents.

Several areas of law must be considered when a legal representative intends to access and dispose of digital assets.  If a device is not owned by an individual then ownership rights of the digital asset must be reviewed.  Terms of use for online service providers also need to be analyzed.  Corporate policies, privacy legislation and jurisdictional issues should also be assessed. 

Legal representatives should understand an individual’s wishes regarding disposition of digital assets.  For example, an individual may wish that certain digital information be deleted on his or her death.  Upon beginning to act, a legal representative should consider changing passwords in a timely manner and perhaps closing accounts.  Thought must be given to whether a testator intends content stored on a device to be bequeathed to one beneficiary but intends the physical device to be bequeathed to another beneficiary. 

A legal representative must have the tools necessary to carry out the deceased/incapable person’s intentions.  Estate planning documents should contain language granting an individual’s legal representative the power to access, control, delete and transfer digital assets.  To assist a legal representative in dealing with digital assets, it may be helpful to prepare an inventory of digital assets including usernames and passwords.  For safekeeping the inventory could be stored in a safety deposit box.  Alternatively, two lists could be created which are kept in different locations, one list containing usernames to online accounts and the other list containing passwords with the legal representative having access to both locations.  There are also online options available for storing this information requiring only one username and password to access all of an individual’s usernames and passwords.

If the disposition of digital assets is not properly planned for, there may be unintended negative consequences.  Digital information not properly protected may reveal secrets that could damage an individual’s reputation or cause strife amongst family and friends.  Also, if a legal representative is not able to quickly access and take control of digital assets, fraud or identity theft could result.  Planning for the disposition of digital assets is recommended to minimize the risk to incapable persons, legal representatives, and beneficiaries.

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