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1. Estate Planning In The Digital Age
By Adnan Chahbar, Siskinds LLP
Introduction
Making a Will is one of the most important tasks you will Tips for Managing your
complete during your lifetime. A Will is a document that, Digital Assets
amongst other things, provides for the orderly distribution of
your property after your death and appoints an executor to  Review the Ownership
rights and Terms of
carry out this distribution. A Will is essential in order to Service for your digital
simplify matters following your death and to ensure that media (pictures, movies,
your property passes to those whom you wish to benefit. If music etc)
you die without a Will, the administration of your estate  Make a list of your
(everything you own when you pass away) will be more usernames and
expensive and complicated by the fact that an executor has passwords for all of your
social media accounts
not been appointed. If you do not prepare a Will, your
property may pass to individuals whom you did not want to  Make a plan for how
your social media
share in your estate, and those whom you would have
accounts should be
wanted to inherit your property, may receive nothing at all or managed (archived or
less than you intended. deleted?)
 List all of the financial
When most people have their Wills prepared, they often services (banking,
credit card, mortgage,
only consider their tangible property, but little, if any, utilities etc) that you
consideration is given to their intangible assets, i.e. access online and their
intellectual property or digital assets. For example, you may passwords
want to consider granting someone access to your  Consider choosing a
Facebook account after you pass away in order to close out digital executor to handle
your Facebook account or carry out other specific
your online and digital
assets.
instructions. Many documents and photographs that used
to only be available in hardcopy are now, increasingly, only
available in digital format. The transition from paper to paperless will make our disposition of
digital assets even more vital. So much personal information is now stored in digital format. In this

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context, the most salient question is, what happens to our digital assets, and the associated
accounts and personal information, once we pass.
Digital Assets
A Will allows you to plan a sensible, cost effective and satisfying transfer of your property and
wealth to your family and selected beneficiaries. Property, in this context, includes all of a person’s
assets, including digital assets. The digital assets that one might transfer in their Will might include
email accounts, digital music, digital photographs, digital videos, social networking accounts, file
sharing accounts, financial accounts, banking accounts, domain registrations, and any other type
of digital assets.
There are several issues that are relevant to the disposition of digital assets. Two of the most
important such issues are:
 Ownership
 Access and Control
Ownership of Digital Assets
An important issue related to digital assets is the ownership of digital assets. For example, if one
purchases a digital copy of a movie, does that grant the purchaser actual ownership over a copy of
the media, similar to analog media purchases, or alternatively, mere permission to
watch/read/listen to the media whenever the purchaser wants? We’ll have to leave this question
for the courts to decide. Either way, such digital media, which may include movies, books and
music, may have great monetary value and its distribution will have to be considered carefully.
Also important in answering the ownership question is the Use Agreement entered into between
the deceased and the service provider. Depending on the content of the Use Agreement, it might
very well be the case that the deceased does not have ownership rights over these assets. If this
is the case, the deceased would not have the right to transfer ownership of the digital assets. The
Terms of Service for many internet account service providers, such as Facebook, claim that the
service provider own the rights to virtually everything its users post on the service providers
website.
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Ownership of digital assets is only practical where those who are to have ownership and control
also have the ability to access these digital assets.
Access to and Control of Digital Assets
In addition to dealing with the transfer of digital assets, when preparing a Will, you should consider
the issue of access to digital assets and the right to manipulate such assets. This issue is even
more important if the deceased was only receiving e-copies of bills or financial statements, or if the
deceased was managing other household affairs electronically. It is likely the case that
creditors/banks will delay providing hard copies of bills/statements if you do not have the proper
passwords or usernames. This delay may have unintended consequences such as cancellation of
crucial services or delinquent fees.
Your executor might require access to your digital records in order deal with various accounts you
may have including bank, credit cards or mortgage accounts. However, your executor might not
even be aware of the existence of these various digital assets if there is no hard copy of them.
Indeed there is a need to keep user names and passwords confidential but, just as certainly, some
of these user names and passwords need to be provided to your executors or beneficiaries so that
they may be able to deal with these digital assets.
Not only is it important for you to consider to whom you would like to transfer ownership and control
of digital assets, you should also consider granting limited access and control rights to the executor
of your estate. An estate usually takes about a year to administer but can take much longer.
During this period, you’ll need to ensure that your executors are able to deal with your digital
assets.
Discussion
Some U.S. jurisdictions have already enacted, or are considering enacting, laws in respect of
digital assets and Wills, specifically, an executor’s rights to control a deceased’s digital assets. No
jurisdiction in Canada has enacted legislation which specifically deals with digital assets.
Consequently, specific rules related to digital assets don’t really exist. There was a case recently
in the U.S. where the parents of a soldier who was killed in Iraq wanted access to their deceased
son’s email account. However, the email service provider refused access to the deceased’s
parents on the basis of their privacy policy and service contract which restricted access and use
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rights to the account-holder, namely the deceased soldier. This case highlights the need for
people to start to seriously consider issues related to their digital assets.
Digital assets are an important part of your estate and need to be considered carefully when
having your Will prepared or considering your estate plan. Otherwise, not only will you stand to
lose financial digital assets, but also digital assets that carry sentimental value; in both cases,
digital assets have value. During the estate planning process clients take account of their tangible
assets and turn their minds to whom they would like their tangible assets to be passed; the same
attention and consideration ought to be paid to intangible assets as well.
During the estate planning process, the first step should be taking an inventory of your online
presence and listing all of your digital assets including your online accounts, usernames and
passwords. Next, you should consider and provide instruction on what your wishes are with
respect to what should happen to your digital assets after you pass away. The benefits, to be sure,
of providing specific instructions expressing your wishes regarding your digital assets to your legal
advisor during the estate planning process is that, not only will your digital assets pass on to those
persons you want, but the orderly transfer will avoid any burdens for your loved ones. Consider
how difficult it would be for your loved ones to discover or manage your online presence without
the necessary information and direction from you. How many times have you forgotten a password
or username? How difficult and time-consuming was it for you to either remember or reset your
username or password? Now consider how much more difficult and time-consuming an exercise
this would be for your executors.
When reflecting on your digital estate (all of your digital assets are, collectively, your digital estate),
one option to consider is appointing a digital executor. Most clients expect to appoint an executor
when they are preparing their Wills. However, appointing a digital executor whose role includes
dealing with all of your digital assets may make sense for you as well. Your digital executor may
be responsible for deleting any files that you do not want to exist after you pass, deleting
confidential information stored digitally such as emails, or transferring access to certain digital
assets to persons that you have chosen.
Conclusion
We are all living in the digital age. Estate planning must keep pace and evolve into the digital age.
These days, estate planning involves much more than simply deciding who gets our house and our
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bank accounts. It’s a fact that most of us have a significant online presence and that this presence
is growing. It’s also a fact that our online presence plays an important role in our lives. Indeed, our
online presence will be part of our legacy as well once we pass. Much of our financial, personal
and professional information is found online. Further, much of this information online is not found
anyplace else. For these reasons, amongst others, it’s prudent to reflect on, and provide specific
instructions in respect of, these issues during the estate planning process.
The risks associated with neglecting to consider and properly make decisions related to your digital
assets are myriad. If you do not appoint someone to deal with your digital assets once you pass,
you expose yourself to post-mortem identity or content theft. Consider your digital assets,
especially those which include your personal information, forever floating around in cyberspace. At
Siskinds, we have had experience addressing the issue of digital assets in the context of estate
planning, specifically how to properly pass digital assets after death. Feel free to contact us with
any questions you might have in regards to your digital estate.
Adnan practices in Siskinds’ Business Law Group and also assists clients with Estate Planning. If
you have any questions or would like more information about Estate Planning, please contact
Adnan Chahbar at adnan.chahbar@siskinds.com or call 519-672-2121.
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