Planning Your Digital Estate: Factors Affecting Digital Property and Accounts

Why You Should Consider Planning for Digital Assets and Accounts

Maybe you’ve just started to think about creating an estate plan, but in addition to planning for the management of your tangible, real, and financial assets, you’ll also want to create a plan for your digital assets and accounts. In fact, while there are intestacy laws governing how your property will be distributed if you do not have a will, a host of legislation and online service practices make it far more difficult for your online accounts and digital assets to be managed if you have not clearly stated your wishes and granted a trusted person authority to access and manage your digital property and identity.

The proliferation of online content providing services has led to more of our property existing in digital space, determined by rights of access, rather than physical possession. Instead of stacks of cassette tapes or cd’s, music lovers have transitioned more and more towards an iTunes library or a subscription to a music streaming service. While the Supreme Court of Canada has continually affirmed the need for “technological neutrality” in the application of copyright law1; the fact is that accessing media and other content digitally profoundly impacts the rights we have to any material and how to effectively plan for the management of online assets and accounts after incapacity or death.

Beyond just consumable media, any online accounts you have registered represent another consideration. Frequently, estate executors encounter difficulty when attempting to access a testator’s online accounts. While the Canadian criminal provisions for fraudulent access of online accounts is not nearly as burdensome as the Computer Fraud and Abuse Act is in the United States, strict privacy regulations in Canada can impose a burden on executors attempting to acquire information and access to digital accounts which contain personal information. Federally, the Personal Information Protection and Electronic Documents Act allows for persons with a Power of Attorney to provide consent for the disclosure of personal information2.

Major Tools for Managing Digital Assets

Just like planning for the management of other estate assets, properly planning for your digital assets involves listing all of your digital assets, making your wishes for these assets clear, and providing someone you trust with the authority to manage these assets in the event that you are unable to.

A significant first step is to make a list of all of your digital accounts and assets. Creating a list of your email accounts, online bank information, and digital libraries along with login information you wish to disclose will allow your digital estate trustee to access all of your accounts. Once you have an inventory, start considering how you want your various accounts and assets managed. For example, would you want social media accounts completely deactivated or would you prefer the accounts containing content you’ve posted to be frozen? Do you want your executor to be able to login to your email account and be able to send emails from it, or would you rather allow your executor to have access to your previous emails?

A Power of Attorney will provide someone you trust with the authority to handle your medical decisions, property, and affairs in the event that you lose the capacity to handle your own finances and property. Ontario commonly uses both Powers of Attorney for Personal Care and Powers of Attorney for Property, though both may be combined into a single document.

Lastly, remember to check the policies of each online service provider with whom you have an account, as some companies have developed programs to facilitate in the management of an account after a user’s death. As mentioned, Facebook has an option to memorialize accounts instead of having them deleted entirely, and Google also provides options for accessing a deceased user’s account.