Administering an estate as an executor twenty years ago looked much different than it does today. Twenty years go, your executor would rummage through your “private papers” in your credenza to try to piece together what assets comprised your estate and what bills needed to be paid. In today’s predominantly “paperless” world, executors are relying less and less on physical paper clues to piece together the
composition of an estate and are instead looking for digital assets.
We define digital assets as content, files, resources, or accounts that you have created, purchased, or primarily store in a digital format. Digital assets began with on-line bank accounts, credit cards, and rewards programs accounts like Air Miles. Today, one’s digital assets include cryptocurrency like BitCoin or Dogecoin, and digital documents such as photographs, videos, music, movies, e-books and other
information stored on cloud accounts like an Apple ID. Finally, digital assets also include all social media accounts from Flickr to Facebook, even though they may have minimal financial value.
Planning with Passwords
It is recommended that you list all of your digital assets and provide the username and passwords. Further, you should list all emails and the phone number associated with each account, so that the ‘forgot password’ option can be used in case the password was changed and not updated on your list prior to your death.
Unfortunately, without proper planning, your executor may not be able to access all of your digital assets for various reasons. Currently, Canada has not implemented comprehensive legislation to deal with the area of digital assets. Two examples highlight this shortfall. First, Peggy Bush, a widow in British Columbia was told that she had to get a court order to retrieve her late husband’s Apple ID password just so
that she could continue to access apps on their iPad. Second, there was the situation of QuadrigaCX, a Canadian cryptocurrency exchange that lost hundreds of millions of dollars in 2018 when its founder died without leaving passwords and user information.
Aside from the lack of legislative guidance, some digital assets may be restricted by the contract you entered into with the service provider when you signed up. That service provider may be governed by the laws of another jurisdiction outside Canada, and broadly, some service providers may require probate to provide access to the digital asset, which is not ideal in many situations. In all circumstances, it is best
to ensure that your Will clearly provides authority to deal with all of your digital assets and to plan in advance to avoid any unnecessary complications in an already technically complicated area.
Social Media
When planning your estate, the question of the control of the social account arises. Certain social media platforms, like Facebook, allow you to designate a ‘legacy contact’ who can control your account after your passing and request its removal. Twitter and LinkedIn require a notice from your executor or a verified family member to have an account deactivated, but there is no way to access your account. Finally,
Instagram will memorialize the account with proof of death and will remove the account so long as the person requesting removal can provide proof of family status. Generally, it is important for you to provide updated usernames and passwords as not all social media and email providers have an access option without the username and password.
Solutions
Aside from always including clear provisions in your last Will for your digital assets, there are certain password services such as Legacy Locker or LastPass that can help make the process much simpler. After creating an account, you add your digital assets and add beneficiaries to bring your list of digital assets into one conveniently stored location. If a traditional paper list of digital assets is preferred, you
must ensure that the login information is always kept up to date, and it is the best practice to back up any sentimental items onto portable storage devices such as USB sticks or external hard drives, and ensure these back ups are not encrypted.
Moreover, if you have an account administrator or IT tech person, ensure their contact details are listed in the event of a hardware or security issue that requires hands on service. These tech savvy professionals may be able to assist in the event that no advance planning measures where taken and there is a password protected computer that your family or executors require access to. There are a few more drastic
options, such as physically removing the hard drive and plugging it into another computer to extract the files, however, this is only possible if the files were not encrypted. In a worst-case scenario, an IT person may be able to recover some of the data, but cracking encrypted data can be nearly impossible without the user’s passwords. While we are always told never to share our passwords with anyone, this is exactly what must be done to prevent a technological quagmire on your
passing.
Overall, given the fluid legal rules surrounding digital assets, and their liquid or elusive nature, the best way to protect your digital assets is to ensure that you give your executor or attorneys named in your power of attorney for property clear authority to deal with your digital assets. It is important for you to make the planning around your digital assets a priority so that, on your sudden passing, your
family is not left to shoulder even more stress at a time of great loss.
