Succession Planning for the Online World – What Is a Digital Asset Anyway?
With the ever-increasing role of social media, online data storage, and online shopping in our daily lives, lawyers now have to contemplate how best to “succession plan” for a client’s digital assets on death! Most of us have a variety of online accounts, whether it be for Rewards points, Facebook, LinkedIn, a business website, Netflix, I-cloud or a seemingly endless number of similar digital media that may contain valuable information about us including personal photo albums, private documents and the like. More recently we have been introduced to what are known as cryptocurrencies such as Bitcoin! Bitcoins are entirely virtual and therefore without the proper legal access and log-in information, any such valuable assets may be unrecoverable by the executor of the Will and never passed on to beneficiaries.
While a standard Will contains language to allow the executor, who is the person given the authority to deal with all of the deceased’s assets, to have access to all such assets, it was never contemplated by the Wills drafters of the last century (myself included) that we would need to adapt our Wills to include some provision for the management and possible transfer of ownership of what we now refer to as digital assets. This issue has been further complicated by the risk adverse positions that certain social media giants have taken when contacted by executors who want to access a will-maker’s online account without the password. (Note to self – keep a current, accessible, but safely stored record of all relevant online accounts and log-in information for my executor!)
Recently in the news I read of the unfortunate challenges that a surviving spouse had when trying to access her deceased husband’s Facebook account in order to preserve some family photos stored there. She was not only his wife but also his executor under his Will. Facebook would not allow her access to the account as she did not have the password and her husband’s Will did not specifically grant her authority to manage his digital assets! While Facebook may have been stating a correct legal position, the grieving spouse was facing the necessity of hiring a lawyer in the USA to seek a court order to allow her access, which is terribly unfortunate given the circumstances.
In response to stories like that, British Columbia lawyers have developed a new clause for our Wills that specifically authorizes an executor to be able to deal with all digital assets of the deceased. While I now use such a clause routinely in all of my Wills, there is certainly no guarantee that a social media or other online provider will accept that clause as providing sufficient authority to allow access. I do think that as we go forward and more clarity is provided by the courts and by the gatekeepers of our social media assets, executors will have a much easier time accessing that important information and data. In the meantime, my best advice is to a) keep track of your social media accounts and make sure your executor can access them with your login and password; and b) consider updating your Will to include a digital assets clause.