If you were to die tomorrow, your family would likely go through your possessions in an effort to organize and distribute them to various family members or friends. Collecting your physical assets would be a relatively straightforward, albeit daunting, task; they would probably start in one room and work their way through to other areas of the house. But what would they—or could they—do about your digital assets?
So much of what we do now takes place online. Between e-books, iTunes music libraries, Bitcoin accounts, and Dropbox folders containing decades’ worth of photos, videos, and documents (not to mention social media accounts such as Facebook, Twitter, and Instagram), many of us have probably accumulated a sizeable online presence or “digital estate”.
In fact, a 2011 global survey conducted by computer security software company McAfee revealed that Canadian users place an average value of $47,000 (USD) on the “digital assets” they own across multiple digital devices. With the exponential proliferation of technology and social media in the last few years, I suspect this number would be significantly higher today.
Now imagine that your family could not legally access any of those digital assets.
The Law of the Land
Unfortunately, there is no legislation in Canada that allows family members or even the executor of an estate to gain access to digital assets on behalf of a deceased person. The law in this area simply has not caught up to the state of modern technology and the blurred lines between our physical and online worlds.
This means the policies of individual service providers will determine how families can access their deceased loved ones’ accounts (if they can access them at all). Keep in mind that all of the online accounts we use are governed by the Terms of Use of that particular service provider. We don’t own our online accounts; we simply have a license to use them. So, without uniform legislation on right of access upon death, your family members are left to the mercy of the service providers, which all have different polices on what happens to your account when you die.
So What Can You Do?
If you want to let your loved ones access your digital assets upon your death, it comes down to you to make your wishes known. And one of the ways you can do this is through your will.
When you meet with your estate planning lawyer, ask them about including “digital asset” language in your will and make sure that your executor is explicitly empowered to acquire, access, and manage your digital assets. Although these clauses are untested and may not be bullet-proof, they are a good way to demonstrate your wishes and may encourage a provider to grant your executor access to online accounts.
In addition to this, I suggest that my clients make a list of their online accounts along with the login information and specific details about what they want done with those accounts. This can be kept in a safe deposit box at home or at the bank. The trick is to be diligent in updating the list when your passwords change, which can be burdensome. However, certain password management systems, such as PasswordBox, include what is called a “legacy feature” in an effort to make this process a little easier. The legacy feature allows you to assign a beneficiary who would be responsible to oversee your password information if something were to happen to you. There is always some risk in creating a list like this, so you’ll need consider this option carefully.
Lastly, discuss your wishes with your executor-to-be and let them know how they can access your accounts. Keep in mind that on many online accounts, giving someone else your login information may violate your service agreement, so make sure to talk to your lawyer about this issue.
Final Thoughts
There’s no doubt that technology is developing much faster than the law. While the law plays catch-up, it is important that you be proactive in protecting your digital assets. You can do this by articulating your wishes (both formally through your will and informally through discussions with your loved ones) and ensuring your executor is given the authority to act on those wishes.
Unfortunately, dealing with digital assets is often overlooked in the estate planning process, but we simply can’t ignore their increasing ubiquity. Fortunately, with just a little planning and forethought, you can help your loved ones piece together your digital legacy.