Securing Your Digital Assets: A Guide to Including Digital Assets in Your Estate Plan

Written By: Richard Schaub

We are living in a digital age, where we create, store, and access various types of digital assets every day. Digital assets can include the photos we store, the messages we send, the emails we create, or the cryptocurrencies we trade. Essentially, they embody everything we own or have rights to that exists in a digital format.

However, many people often overlook these assets when considering their estate plans.

Understanding Digital Assets

Digital assets can hold significant value, both monetary and sentimental. In our increasingly digital world, they often contain a substantial amount of personal and sensitive information. Neglecting these assets can lead to numerous problems, including loss of access, infringement of privacy, and in severe cases, identity theft.

We no longer live in a world where family photos are stored in a box in the attic, they are now stored virtually on platforms such as Google Drive or iCloud, among other platforms.

Why are Digital Asserts Important in Estate Planning?

When digital assets are not considered in estate plans, service providers may deny access to anyone but the account holder. This creates issues when the account holder dies or becomes incapacitated. This can lead to problems such as loss of access, privacy breaches, and even identity theft.

Without having specific instructions in your Will, many online service providers holding your digital assets (example: photos stored on Facebook) will not provide non-account holders access due to Canadian privacy laws.

How to Include Digital Assets in Your Estate Plan

To avoid these issues, and to ensure that your digital assets are preserved and transferred according to your wishes, it is important to include them in your estate plan. Here’s how you can go about it:

1. Make an Inventory of Your Digital Assets

Identify all Digital Assets: Create a list of your digital assets that includes everything from social media accounts to online subscriptions.

Access to Digital Assets: For each asset, document usernames, passwords, security questions, and any other relevant access information needed to access your digital assets.

Regularly Update the List: Regular updates are crucial as assets and access information change.

2. Specify Your Wishes

Designate Beneficiaries: For each digital asset, you can specify who you wish to inherit it, what you want them to do with it, and whether any restrictions or conditions apply. For example, you may wish for some digital assets, such as social media, to be deleted, or to transfer assets, such as cryptocurrencies, to your beneficiaries.

3. Check the terms of service of your online service providers. 

Review Terms of Service and User Agreements: Many online service providers have their own policies concerning the access and transfer of digital assets. Often, these policies restrict access to the account by anyone other than the account holder and may require a court order to grant access. It is best practice to review these terms and see if they are consistent with your wishes and expectations.

Designate Access Where Possible: Some service providers allow users to designate someone who can access their account after death, such as Facebook’s legacy contact or Google’s inactive account manager.

4. Incorporate Digital Assets into Legal Documents

Update Your Will and Enduring Power of Attorney: Explicitly include provisions that address your digital assets, enabling your Personal Representative or Attorney to manage them according to your wishes.

Address Canadian Privacy Laws: Canadian privacy laws, such as the Personal Information Protection and Electronic Documents Act (“PIPEDA”)[1], govern online service providers ability to disclose personal information of the deceased, requiring careful consideration and specific authorization in your estate planning documents.

Where an individual has been deceased for less than 20 years, PIPEDA requires that the online service provider cannot disclose personal information without an order of “a court, person or body with jurisdiction to compel the production of information…”[2]

Effectively, the law does not permit online service providers to disclose the personal information of deceased individuals during the administration of their estate. To ensure your Personal Representative or Attorney can access your digital assets and accounts, it is vital that digital assets are considered in your estate plan.

5. Securely Store Your Information

Use Secure Storage Solutions: Keep the inventory of your digital assets and estate planning documents in a secure place, such as a fireproof safe or safety deposit box. Respecting digital assets, they can be secured using cloud storage services such as 1Password, a platform for users to store passwords to various online accounts.

Inform Your Personal Representative and Attorney: Ensure that your Personal Representative and Attorney are aware of the location of, and how to access, these documents.

Conclusion

Addressing digital assets in your estate plan is pivotal to ensure your digital assets are preserved, your privacy protected, and your wishes respected upon your death or incapacity.

Estate planning is not one-size-fits-all but should be a thoughtful and detailed process reflecting individual needs, values, and preferences. Do not hesitate to reach out to the writer, Richard Schaub (rschaub@sb-llp.com), with any queries or if you require assistance in preparing your estate planning documents.

1 Personal Information Protection and Electronic Documents Act, SC 2000, c 5

2 Ibid at s 7(3)(c)