Every day, we save, post and share documents and photos electronically through various electronic accounts: Facebook, Twitter, Instagram, Pinterest, LinkedIn, Google+, Outlook, Dropbox just to name a few. Many people also participate in the electronic marketplace on websites such as Castanet, Kijiji, Craigslist, Etsy, iTunes, VRBO and Airbnb. Each such document, photo, post or account makes up a part of your electronic assets and thus forms part of your estate. Have you thought about what will happen to your electronic assets when you die?
The Wills, Estates and Succession Act of British Columbia (“WESA”) does not distinguish between electronic assets and other types of personal property. Accordingly, your electronic assets may be distributed in accordance with the scheme set out in your will (or the intestacy rules set out in WESA if you do not have a will).
That being said, it is important to recognize that your executor may face challenges in collecting your electronic assets. For example, unless your executor has the current login information to each of your electronic accounts, he or she will likely not be able to gain access to your accounts or the electronic documents and pictures attached to such accounts. Most (if not all) social media and electronic services providers have policies which prohibit giving out login information to anyone except the account holder.
The policies of social media and electronic services providers are less consistent when it comes to who can report the death of an account holder. Generally, it is accepted that a “close family member” may report your death by contacting the social media and electronic services providers directly. However, it is preferable if your will expressly grants your executor the power to deal with electronic assets and associated accounts in all respects or in specific ways.
Once a social media or electronic service provider is aware that an account holder has passed away, there are generally three options: (1) leave the account active; (2) memorialize/freeze the account; or (3) delete the account and all content associated with such account. Each social media or electronic service provider is different in this respect. Facebook recently announced changes to their succession/legacy policies. For example, unless your settings say otherwise, your account will automatically be memorialized upon your death. This means that Facebook will add “Remembering” before your name and keep your account and all of your posts and photos visible indefinitely. Facebook recently implemented a new feature in which you can appoint a “legacy contact” who has certain powers in the event of your death. For example, your legacy contact can write and pin a final post on your profile, respond to new friend requests, update your profile picture and cover photo and download a copy of the photos and posts you shared. If you do not appoint a legacy contact, no one will be able to download the content from your account (photos).
Here are a few things to think about when doing your estate planning:
- If you have an existing will, are electronic assets included in the definition of your “assets”, “property” or “estate”?
- If you have an existing will, does your executor have the power to deal with your electronic assets? Specifically, can your executor request your login information, request the memorialization of your account, access/download your electronic documents and photos, etc.?
- Are you the legal owner of your electronic assets or are you a license holder? For example, generally, when you download something from iTunes you are granted a license to use the song, app, etc. – you do not actually become the legal owner.
- Do you have a list of your current login information for all of your social media and other electronic accounts?
- Do you want your electronic accounts to be memorialized, deleted or otherwise?
- Do you want all of your electronic accounts to be treated the same?
- Do you have documents, photos or other electronic assets which you would like your family and friends to have access to (whether temporarily or permanently)?
Please let us know if you have any questions regarding the above or your estate planning needs. We would be happy to discuss how your electronic assets will pass under your current will, if any.
Author: Danielle (Dani) Brito
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 real estate law at the following:Una Gabie: firstname.lastname@example.org Jennette Vopicka: email@example.com Danielle (Dani) Brito: firstname.lastname@example.org Jaime Boyle: email@example.com