Successfully reported this slideshow.

Estate Planning In The Digital Age


Published on

Siskinds represents financial institutions, businesses and individuals by providing the right blend of service providers, such as paralegals, bankruptcy trustees and bailiffs to help recover defaulted accounts in a sensible and speedy manner.

Published in: Career
  • Be the first to comment

  • Be the first to like this

Estate Planning In The Digital Age

  1. 1. Estate Planning In The Digital Age By Adnan Chahbar, Siskinds LLPIntroductionMaking a Will is one of the most important tasks you will Tips for Managing yourcomplete during your lifetime. A Will is a document that, Digital Assetsamongst other things, provides for the orderly distribution ofyour property after your death and appoints an executor to  Review the Ownership rights and Terms ofcarry out this distribution. A Will is essential in order to Service for your digitalsimplify 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 andexpensive and complicated by the fact that an executor has passwords for all of your social media accountsnot been appointed. If you do not prepare a Will, yourproperty may pass to individuals whom you did not want to  Make a plan for how your social mediashare in your estate, and those whom you would have accounts should bewanted to inherit your property, may receive nothing at all or managed (archived orless than you intended. deleted?)  List all of the financialWhen 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 youconsideration is given to their intangible assets, i.e. access online and theirintellectual property or digital assets. For example, you may passwordswant to consider granting someone access to your  Consider choosing aFacebook account after you pass away in order to close out digital executor to handleyour Facebook account or carry out other specific your online and digital assets.instructions. Many documents and photographs that usedto only be available in hardcopy are now, increasingly, onlyavailable in digital format. The transition from paper to paperless will make our disposition ofdigital assets even more vital. So much personal information is now stored in digital format. In this
  2. 2. -2-context, the most salient question is, what happens to our digital assets, and the associatedaccounts and personal information, once we pass.Digital AssetsA Will allows you to plan a sensible, cost effective and satisfying transfer of your property andwealth to your family and selected beneficiaries. Property, in this context, includes all of a person’sassets, including digital assets. The digital assets that one might transfer in their Will might includeemail accounts, digital music, digital photographs, digital videos, social networking accounts, filesharing accounts, financial accounts, banking accounts, domain registrations, and any other typeof digital assets.There are several issues that are relevant to the disposition of digital assets. Two of the mostimportant such issues are:  Ownership  Access and ControlOwnership of Digital AssetsAn important issue related to digital assets is the ownership of digital assets. For example, if onepurchases a digital copy of a movie, does that grant the purchaser actual ownership over a copy ofthe media, similar to analog media purchases, or alternatively, mere permission towatch/read/listen to the media whenever the purchaser wants? We’ll have to leave this questionfor the courts to decide. Either way, such digital media, which may include movies, books andmusic, 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 betweenthe deceased and the service provider. Depending on the content of the Use Agreement, it mightvery well be the case that the deceased does not have ownership rights over these assets. If thisis the case, the deceased would not have the right to transfer ownership of the digital assets. TheTerms of Service for many internet account service providers, such as Facebook, claim that theservice provider own the rights to virtually everything its users post on the service Siskinds LLP
  3. 3. -3-Ownership of digital assets is only practical where those who are to have ownership and controlalso have the ability to access these digital assets.Access to and Control of Digital AssetsIn addition to dealing with the transfer of digital assets, when preparing a Will, you should considerthe issue of access to digital assets and the right to manipulate such assets. This issue is evenmore important if the deceased was only receiving e-copies of bills or financial statements, or if thedeceased was managing other household affairs electronically. It is likely the case thatcreditors/banks will delay providing hard copies of bills/statements if you do not have the properpasswords or usernames. This delay may have unintended consequences such as cancellation ofcrucial services or delinquent fees.Your executor might require access to your digital records in order deal with various accounts youmay have including bank, credit cards or mortgage accounts. However, your executor might noteven 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, someof these user names and passwords need to be provided to your executors or beneficiaries so thatthey 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 controlof digital assets, you should also consider granting limited access and control rights to the executorof 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 digitalassets.DiscussionSome U.S. jurisdictions have already enacted, or are considering enacting, laws in respect ofdigital assets and Wills, specifically, an executor’s rights to control a deceased’s digital assets. Nojurisdiction 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 recentlyin the U.S. where the parents of a soldier who was killed in Iraq wanted access to their deceasedson’s email account. However, the email service provider refused access to the deceased’sparents on the basis of their privacy policy and service contract which restricted access and Siskinds LLP
  4. 4. -4-rights to the account-holder, namely the deceased soldier. This case highlights the need forpeople 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 whenhaving your Will prepared or considering your estate plan. Otherwise, not only will you stand tolose 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 tangibleassets and turn their minds to whom they would like their tangible assets to be passed; the sameattention 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 onlinepresence and listing all of your digital assets including your online accounts, usernames andpasswords. Next, you should consider and provide instruction on what your wishes are withrespect 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 legaladvisor during the estate planning process is that, not only will your digital assets pass on to thosepersons you want, but the orderly transfer will avoid any burdens for your loved ones. Considerhow difficult it would be for your loved ones to discover or manage your online presence withoutthe necessary information and direction from you. How many times have you forgotten a passwordor username? How difficult and time-consuming was it for you to either remember or reset yourusername or password? Now consider how much more difficult and time-consuming an exercisethis 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 executorwhen they are preparing their Wills. However, appointing a digital executor whose role includesdealing with all of your digital assets may make sense for you as well. Your digital executor maybe responsible for deleting any files that you do not want to exist after you pass, deletingconfidential information stored digitally such as emails, or transferring access to certain digitalassets to persons that you have chosen.ConclusionWe 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 Siskinds LLP
  5. 5. -5-bank accounts. It’s a fact that most of us have a significant online presence and that this presenceis growing. It’s also a fact that our online presence plays an important role in our lives. Indeed, ouronline presence will be part of our legacy as well once we pass. Much of our financial, personaland professional information is found online. Further, much of this information online is not foundanyplace else. For these reasons, amongst others, it’s prudent to reflect on, and provide specificinstructions in respect of, these issues during the estate planning process.The risks associated with neglecting to consider and properly make decisions related to your digitalassets 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. AtSiskinds, we have had experience addressing the issue of digital assets in the context of estateplanning, specifically how to properly pass digital assets after death. Feel free to contact us withany questions you might have in regards to your digital estate.Adnan practices in Siskinds’ Business Law Group and also assists clients with Estate Planning. Ifyou have any questions or would like more information about Estate Planning, please contactAdnan Chahbar at or call Siskinds LLP