Digital Assets? What are those? In the words of Wikipedia, a digital asset is anything that exists in a binary format and comes with the right to use.  Digital assets include but are not exclusive to: digital documents, audible content, motion picture, and other relevant digital data that are currently in circulation or are, or will be stored on digital appliances such as: personal laptops, portable media players, tablets, storage devices, telecommunication devise and any and all apparatuses which are, or will be in existence once technology progresses to accommodate for the conception of new modalities which would be able to carry digital assets.

A list of digital assets might include email accounts (gmail, hotmail, yahoo, etc.), cloud storage accounts (dropbox, googledocs, shutterfly, etc.), social media accounts (Facebook, Twitter, Linkedin, etc.), online gaming accounts (Xbox live, World of Warcraft or similar online games, Internet poker, etc.), subscription media accounts (Rdio, Netflix, newspapers with paywalls, etc.), loyalty programs (Air Miles, Petro-Canada, HBC Rewards, etc.), digital currencies (Bitcoin, Blackcoin, etc.) and electronic commerce accounts (Ebay, Paypal, Kickstarter, etc.).

Unfortunately for executors, there is not much guidance to be gleaned from the law when it comes to dealing with a deceased’s digital assets. The law has not kept up with the rapid pace of technology in relation to what an executor should or should not do with a person’s digital assets upon their death.

That being said, drawing upon what the law does say with respect to how an executor is required to deal with the deceased’s assets and what we know about digital assets in general, here are some tips an executor should consider undertaking with respect to the deceased’s digital assets:

1. Secure all of the deceased’s digital devices including computers, tablets, smartphones etc.  It is likely that these devices contain personal information and an executor is responsible for keeping this personal information private and for protecting against identity theft.
2. Make a list of all of the deceased’s digital assets and accounts.  This would include any of the devices secured in 1. above, as well as computer files, digital photographs and online accounts (ie paypal).  A thorough review of the deceased’s personal papers and a search of their browser history can help uncover what digital accounts the deceased had.
3. Make an inventory of all of the deceased’s usernames and passwords.  However, before accessing the deceased’s accounts (even with the user name and password), the terms of all service agreements should be carefully reviewed.  These agreements may specify that only the account holder can access the account.  Even if an executor knows the user/password, using this login to access the account could be a breach of the service agreement for which the executor could become personally liable for.
4. Review the deceased’s Will for any clauses relating to his or her digital property.  Are there any specific gifts of digital assets? Is there a clause granting authority or power to the executor to access the deceased’s digital accounts?  Please note that even if the Will grants the executor the authority to access digital accounts, for the executor’s sake it may be a better option to use that granted authority under the Will to request the contents of the digital account from the service provider (rather then just log on using the deceased’s login information).
5. Contact each service provider and take all steps to retrieve the deceased’s account information and/or ensure the information is deleted and all of the digital accounts are closed.  Many service providers have policies regarding what steps need to be taken and what documents are required in order to delete the contents of the account.
6. Before transferring a digital device to a beneficiary or selling it, the executor should ensure that the browsing history, personal files, and any passwords stored on the device itself are deleted.
7. Before transferring digital content (like movies, music and books) there may be complicated legal issues as to the ownership of that content and whether the deceased is able to transfer the content upon their death.  It may be necessary to review the terms of use that apply to the particular digital content.  The deceased may only have had a limited licence to use the content during his/her lifetime.  As this material is often licensed, the executor should also be cautious of making copies of any content (as this could infringe copyright).

At Touchstone Law Group LLP, we pride ourselves on providing high quality and customized estate planning services. This means, not only carefully drafting estate planning documents that correspond with your instructions, but also spending the time getting to know you and creating a customized estate plan that fits your unique needs and wishes. If you would like to learn more about digital assets or the estate planning process, or if any of your documents need updating, please do not hesitate to reach out to one of our lawyers practicing in the area of wills and estates.

Author: Jennette Vopicka

This information is general in nature only. You should consult a lawyer before acting on any of this information. This information should not be considered as legal advice. To learn more about your legal needs, please contact our office at (250) 448-2637 or any of our lawyers practicing in the area of wills and estates at the following: