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What Happens to Your Digital Assets on Death?

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For most of the 20th century, the transfer property or assets to your beneficiaries following your death was relatively straightforward. Most assets had an easily traceable paper trail. However, with more companies moving to paperless transactions, physical documents are becoming a thing of the past. Think about it – when was the last time you received a physical bank statement?

In recent years, our digital footprint has increased exponentially, to the point where it is nearly impossible to conduct business, play music, organize parties and stay in touch with friends without using an app or a website. So, what happens to your digital assets when you die?  How does a personal representative step into the “online” shoes of the deceased?

The online world raises some real-life issues when it comes to estate planning and the ability of personal representatives to access a deceased’s digital assets. Your digital assets include any information stored on a computer or other digital devices, content uploaded onto websites, and rights to digital property such as domain names. Examples include email accounts, social media accounts, digital music libraries, and even cryptocurrency wallets.

Digital assets are governed by privately held corporations. When you create an online account or sign up for an online service, you are almost always asked to agree to the service provider’s terms of service, data, and privacy policies. These service agreements can often be restrictive when it comes to allowing a person other than the original account holder to access the account. If a fiduciary – such as a personal representative – tries to gain access to a person’s digital assets after the account holder dies, they may be prevented from doing so by the terms of the service agreement.

Estate planning lawyers are beginning to include clauses in Wills that specifically speak to the disposition digital assets. However recent cases have shed light on the fact that simply including these clauses may not be enough. Some online service providers don’t recognize the authority granted to a personal representative under a Will or alternatively, have terms that specifically prevent access by any other person other than the original account holder. Furthermore, the agreements are often governed by US law, giving rise to some jurisdictional issues. This can result in an estate incurring significant legal fees, including filing court applications seeking orders for access.

Legislative reform has started addressing these issues. In Canada, a few provinces, namely Saskatchewan and Prince Edward Island, have adopted legislation aligned with the Uniform Access to Digital Assets by Fiduciaries Act which confirms that the usual powers of fiduciaries (like a personal representative) extend to digital assets. The goal of the Uniform Act is to compel online service providers to provide the fiduciary with access to a digital asset, regardless of the terms and conditions of a service agreement.  Under the Uniform Act, fiduciaries can submit the proper documentation that establishes their authority (ie: a valid Will) and upon receipt, the service provider must provide the fiduciary with access to the digital asset within 30 days.

Unfortunately, the Uniform Actis still not law in Alberta and there is nothing in force that is comparable. While we wait for Alberta legislators to update the laws or service providers change their policies, it is prudent to ensure your Will includes proper clauses that allow your personal representative to deal with your digital assets in the event of your death.

The estate planning lawyers at Getz Collins & Associates can discuss your specific digital assets with you and guide you through the necessary clauses to consider to ensure these assets are managed accordingly.

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