Update on Digital Assets

 In Wills and Estates Law

Digital assets are becoming increasingly important to Canadians, yet they are rarely addressed in wills. The digital nature of assets does not alter the fact that they are, indeed, assets. They form part of your estate on death, and it is important to leave clear instructions to your estate trustees about what should happen to these assets when you die to avoid losing these assets that can have monetary and sentimental value.

Due to a lack of legislation on digital assets, the estate trustee might be directed by service terms outlined by digital account providers and without explicit instructions either in a will or in a power of attorney, companies may assume the deceased had no intention of transferring or sharing digital information. Digital accounts often reserve the right to restrict access to non-account holders out of fear of breaching Canadian privacy laws, which are designed to protect a person’s right to privacy both before and after death.

Different service providers apply their own service terms that can differ greatly from one another. Here’s a look at some updates that have occurred in the last few years, months and weeks.

Facebook

Facebook allows you to designate a person (called a legacy contact) to manage your account if it is memorialized or you can elect to have your account deleted upon notification of your death.

The legacy contact will be able to write a post that will remain at the top of your profile, update your profile photo and respond to friend requests. You can also allow that person to download an archive of your public activity (including posts, photos and “likes”), but he or she won’t have access to your private messages.

You can click here for more information on memorialized Facebook accounts.

Google

Google lets you select up to ten (10) people to be managers of your account, called “Inactive Account Managers”. By selecting an Inactive Account Manager, the google user is granting them future access to their account upon the account being deemed inactive.Google assesses several indicators to understand whether the Google Account has become inactive, while the user him/herself can set the length of inactivity required to trigger access to his/her account by the Inactive Account Manager(s). Once this period of inactivity has elapsed, the Inactive Account Manager(s) will receive a prewritten email from the Google user, ideally containing his or her wishes on how to deal with the data stored in the account.

Unlike your legacy contact on Facebook, you can designate this person to have full access to your Google account, including email and chat histories, and he or she can download the data you specify. You also have the option not to give that person access to any of it. Google also allows you to delete your account and all its data.

Twitter

In the event of the death of a Twitter user, Twitter can work with a person authorized to act on behalf of the estate, or with a verified immediate family member of the deceased to have an account deactivated. Recently, in November 2019, Twitter announced that it will allow people to permanently archive and memorialize the accounts of deceased loved ones.  However, it is not clear when this function will become available. In certain circumstances, Twitter has stated it will consider removing “imagery” of a deceased person, based on “public interest factors such as the newsworthiness of the content.” For more information on Twitters terms and conditions, click here.

This recent CBC article touches on the issues faced by family members seeking access to a deceased family member’s social media accounts.

If you have questions about including digital estate planning, please don’t hesitate to get in touch.

This blog post was written by Diana Tebby, a member of the Real Estate and Wills and Estates teams.  She can be reached at 613-369-0384 or at diana.tebby@mannlawyers.com.

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