Estate Planning for Digital Assets

Wills & Estates - Law Blog
January 18, 2016

Estate Planning for Digital Assets

Nav Parhar - Blog Avatar - Real Estate Lawyer Victoria BC
Nav Parhar

How many of us have a Facebook or Twitter account?  Or use Apple products that entitle us to download and use Apple apps? Or maybe even play daily fantasy sports online?  Each of these services, and countless others, require the user to first set up an account, complete with a username and password, with the provider before we can utilize the platform, app, or game for its desired purpose.  But how do we access and manage those accounts when the account holder passes away?

Problems with post-death digital asset management are becoming more and more common as we increasingly become intertwined with technology, while living in a society that is sensitive to privacy concerns.   An example of this type of struggle recently made news here in Victoria, where a widow tried to retrieve her deceased husband's password so she could access an app on an iPad that she and her husband shared.  She knew the iPad login, but didn’t know the Apple ID password that her husband had established in order to access Apple’s services.  Shockingly, she was told by Apple that she needed to obtain a court order to obtain the information.

One key factor that often leads to some of the confusion in these types of circumstances is that while users typically own the online content, access to it is controlled by the provider. Protocol and policy related to the account is established by the provider.  In other words, while you may own that photo that you are uploading to Facebook or iCloud, access to that photo is controlled by Facebook or iCloud.

Another complicating factor is that Canadian laws do not yet adequately address the point.  The use of social media and digital asset management (ie. the “cloud”) has proliferated so much so in so in the past decade that the lawmakers simply have been unable to keep up with potential issues that may arise.

Regardless of changes to laws or policies that may be months or even years away, our advice is that you should keep an updated list of your digital usernames and passwords in a safe place, and include language in your Will that:

  1. allows the Executor to deal with digital assets just as you would for hard assets; and
  2. directs the Executor to the location of your various usernames and passwords.

So, the next time you virtually upload an album to the cloud or buy gold in your favourite online video game, take that extra step of jotting down and tucking away your access details to the account in case the unexpected happens in real life.

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