Digital assets. It is a phrase that is currently trending among
legal commentators and Canadians alike. Some argue that it is
a critical topic for any estate plan. Others feel it has no place
in an estate planning meeting. So, what is the answer?
The answer: it depends. Simply having an online presence
does not necessarily mean that you should immediately call your
estate lawyer. The key question is: Do you have digital
(electronic) assets? Do you have electronic
property that has value? "Value" is a
subjective question. It may mean monetary value (such as a vast
digital music library, or a four-digit PayPal seller account).
However, it can also mean sentimental value (such as those digital
photos that are stored only on your laptop or in the cloud, or a
blog that documents your child's first year). Electronic
accounts that contain information of a personal or sensitive nature
may also be "valuable" to the extent that it is vital to
you to either prohibit or restrict access to such information on
your death (such as private Facebook or other social-networking
accounts, or email accounts with sensitive
If on a review of your online or electronic property, there is
little that you would describe as "valuable," you likely
do not need to undertake a rigorous planning exercise to assist
your Executor and beneficiaries. In most cases, providing
access to such assets by documenting their existence and the
corresponding login credentials will be sufficient to allow the
Executor to take control over such assets. More difficult questions
arise when determining how to securely document such login
information while keeping it close enough at hand to keep it
current and complete.
Keep in mind that not all of your digital assets are
transferable, nor can all be continued after your death. Many of
your assets are not "owned" by you: use is governed by a
circumstances, providing access to such digital assets may be the
only means by which the assets can be maintained after your
If the quality or quantity of your digital assets is
significant, you may wish to seek guidance as to how to implement
your wishes in the event of your death or incapacity. Such a plan
might include a comprehensive inventory of such assets, and the
relevant login credentials. It would also document your wishes with
respect to specific assets, and explore the logistics by which your
Executor can secure such assets and fulfill your wishes. For
example, you may wish to instruct your Executor to delete your
email accounts without reading or publishing the contents, or
direct your Executor to access your Facebook account and obtain a
download of all of the account contents for the interest and
records of your family (currently Facebook accounts cannot be
continued on death of the holder). If you are a business owner, it
might be particularly important to understand which digital assets
are owned by you personally and which are held by the
At minimum, if you retain important or valuable documents and
files on a password-protected computer or other device, you should
consider securely documenting the passwords or providing them to
your Executor. In many cases, where you own the digital
assets, your Executor will be able to take control –
eventually. However, the process can be time-consuming and
disordered, as the service providers' rules vary widely, and
protocols are often not consistently applied. Further, where you do
not own the digital asset – for example, Facebook accounts
– there is no guarantee that the service provider will honor
your direction to your Executor. Therefore, simply providing an
inventory of such assets, and a means to access them, can go a long
way to giving your Executor timely control
and benefiting your beneficiaries with use of such
assets. However, where loss of the electronic materials would
be devastating to your loved ones, reproducing the assets on
non-password protected medium (such as memory cards and external
hard drives) would always be advisable.
Should you wish to discuss your need for a digital asset estate
plan, or if you are considering preparing such a plan, please
Wills and Estates Group. We have expertise in such
matters, and would be very happy to assist.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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