What Are Digital Assets and How Are They Handled Upon Death

 In Wills and Estates Law

Defining “Digital Assets”

“…Water is a useful metaphor for digital assets; they are just as fluid, ever-changing, and dynamic, which presents both challenges and opportunities for executors and those who provide services to them. And, like water, digital assets can simply slip through one’s fingers without care…”

Daniel Nelson, “The Challenge of Digital Estate Administration for Executors”

The term “digital asset” can be defined as a file over which a person claims ownership. It can take many forms, such as:

word documents, pictures, templates/spreadsheets, tweets, or blog posts. These files may be stored on digital devices, including but not limited to, desktops, laptops, tablets, storage devices, mobile telephones, smartphones, and any similar digital device which currently exists or may exist as technology develops.

A “digital account” typically provides access to a digital asset. Basically, a digital asset is to a digital account what a cookie is to a cookie jar.  Digital accounts can be grouped into three types:

  1. accounts with currency information that can convert to real money, such as online banking, PayPal or digital based currencies, loyalty program accounts (such as air miles or hotel rewards), and credit card accounts with cash back;
  2. accounts containing information of personal or commercial interest, such as email and social media accounts, such as Facebook, Twitter, Youtube, Instagram and Pinterest; and
  3. accounts containing virtual property, such as Kindle and iTunes accounts, wherein users have a licence to use digital assets like a song or book but don’t own them.

With the amount of digital property owned by a person constantly increasing, it’s crucial to address such property in your estate plan to avoid losing monetary and sentimental value or potentially creating unintended negative consequences.

Currently, Canada has no legislation regarding the disposal of or rights and succession to digital assets. It is up to individuals to provide their personal representatives with instructions and authorization for their digital assets in their powers of attorney and wills. Whether using a power of attorney or a will, instructions should be clear, specific and closed to interpretation, while being mindful of local authorization and data privacy laws.

The choice of personal representatives should be done with care because those chosen will have access to all of one’s personal information, which could be highly sensitive. Also, passwords should never be spelled out in powers of attorney or wills for obvious reasons. Individuals should consider safe alternative solutions for password storage, protection, and retrieval.

When thinking about your digital estate, start by asking these three questions:

1)   What digital assets do you own? Write an inventory of digital accounts, from e-mails, to Paypal to domain names and update this list regularly.

2)   How should your power of attorney or executor access these assets? List anyone who manages your online presence. Also list the usual locations for physical assets like mobile phones, flash drives and laptops. Document which accounts you want your power of attorney or Estate Trustee to access, and give your explicit consent in writing.

3)   What do you want to happen to your digital property? Whether photos should be wiped, accounts cashed out, or items gifted, make sure you address what should happen to each account and/or asset.

By engaging in some simple estate planning, you can protect your privacy as well as ease the management of your estate after your death. Much like any other valuable tangible or intangible asset, plan for your digital assets in the same way. After all, today’s digital assets are yesterday’s heirlooms. Proper planning can preserve your legacy in its digital form.

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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