For many, some of our life is lived online and we have a presence there that we should address in our wills. Lawyers explain how.
So much of our lives exist in the ether — in that non-tangible virtual world. We post memories on Facebook, Instagram and other social media platforms. Many of our photos, videos, music and games are stored somewhere in the cloud, often for a monthly fee that is automatically deducted from bank or credit card accounts.
Then there are airline points, subscriptions and online businesses. There are also online investments, including crypto currency, digital artwork or non-fungible tokens (an NFT is a unique digital identifier recorded on a blockchain and used to certify ownership and authenticity.) Even parts of our everyday lives are controlled through applications on our phones — setting the hot tub temperature from afar, running heating and video security systems and starting the car.
All that adds up to more than just sentimental value.
Some legislation in place
Saskatchewan, Prince Edward Island and, most recently, New Brunswick have introduced legislation giving appointed designates the right to access those digital assets, in the same way they have a right to access tangible property. It allows powers of attorney and other designates to take any action involving a specific digital asset that could have been taken by the account holder.
There’s no indication at this point whether other provinces will follow suit. There has been movement on the federal level to grant a person expanded rights to control their data held by commercial entities. It would enable their designate to demand all information the companies have about that person, including the right to request that the information be disposed of across the country, similar to what is in place in the provinces with legislation. But nothing has come to fruition yet.
Sandy Abley, a fee-for-service certified financial planner and trust and estate lawyer in Vancouver, points out that it can help powers of attorney if we itemize in our wills all the information we keep in the virtual world. This would be particularly helpful in the absence of legislation. Such tools are meant to contain instructions on what our loved ones should do when we die or if we become incapacitated.
“What is not in those documents [wills and powers of attorney] … is carefully written instructions,” Abley says. “Unless you completely aren’t using a cellphone or a computer or laptop at all, I think everybody has some type of online presence, even if it’s only an email address. [As such] you should be instructing somebody to delete all your apps. Even if it means to tell somebody to reset it and put it back to factory default.
“If someone dies in your family and they didn’t put together that list and how to access everything and all the passwords, you’ll eventually get access to all of that, but it will take a really, really long time,” she says. “And it might not be online access, it might just be printed copies of stuff.”
Make a list and check it twice
She suggests taking pen to paper or creating a spreadsheet listing the various digital assets and telling a trusted person where to find that list, along with the keys and passwords. A good approach is to grow the list gradually, adding the account or site as you log in and use them.
Those who don’t have someone particularly close to share that information with can work with a trust company.
Important, too, is including instructions on what to do with those assets. That could include closing bank accounts, archiving social media or selling cryptocurrency. There might even be a biography or creative work on the computer or in the cloud that could be saved for future generations or might be intended for publication.
“Or maybe the instructions are: ‘If I die, you take my computer and you drive over it,” says Abley. “If you’ve got stuff on your computer that you don’t want anyone to ever find out about, maybe you should think about securing that.”
Ottawa wills and estates lawyer Charlotte McCurdy points out that for those living in the provinces and territories that don’t have governing legislation, the default is the conditions of the service provider, which the user agreed to by clicking on the terms and conditions box when opening the account. That includes whether membership points can be transferred and if the attorney appointed through the power of attorney can access the social media account.
“Now we’re kind of in this state of limbo,” McCurdy explains. She, too, suggests including a clause in your will and power of attorney that allows an appointed person to access that information. She also suggests that a list of digital assets be part of a digital estate plan that includes hardware, software and all the accounts and she suggests keeping passwords in a place where a trusted person can access them, along with instructions on what’s to happen with them.
Mark O’Farrell believes digital assets can be quite valuable and that we’ve been slow to acknowledge them. The chartered financial consultant and president of the Canadian Institute of Certified Executor Advisors believes that people often miss the very basic step of sharing the passwords for these accounts. Once the person is gone, all that information they stored online may well be out of grasp, no longer accessible by anyone.
Without a physical presence, these digital assets are often forgotten and forever lost.
“Peoples’ lives are documented digitally — their photographs, their relationships,” O’Farrell says. “Now you have a responsibility to protect those assets for the beneficiary.”
Biotech adds complexity
O’Farrell offers a word of warning. Biotechnical digital assets are bound to develop further and become more complex, making planning for them even more important.
Currently, the focus is sharing passwords for assets and accounts. But biotechnology has started to come into play.
“For example, what happens when I need mum’s thumbprint to access her phone,” he said. “How are you going to handle that exactly? What happens if you need a retina scan? If your password doesn’t work and you need a retina scan and a thumbprint in order to access those things, that’s going to be really difficult. So now how are you going to pay the bills? As we move forward into digital and biotechnology, all of this is going to become that much more complicated.”
Unexplored territory
Online and social media providers each have their own rules on ownership and access by others. While legislation may override their conditions, most provinces and territories have nothing regulating digital assets.
Social media platforms such as Facebook and Twitter include considerations to remove or memorialize a loved one’s account after they’ve died. But accessing some of those accounts has proven difficult and time-consuming without sign-in and password information.
Apple allows for the creation of a legacy contact. An account may be suspended or deleted if it receives proof that an account holder has died. But Apple data, including information on iCloud, is non-transferrable, even after death.
Microsoft won’t provide information about any accounts or access to those without the account credentials. Instead accounts are closed automatically after two years of inactivity.
Google has an inactive account manager to allow users to share parts of their account data or notify someone if they’ve been inactive. But that needs to be set up in advance.
You and Your Survivors
Federal Retirees published an estate-planning book in conjunction with Arbor Memorial. Pages 17 to 19 have a worksheet that offers a good list of digital assets, along with a place for URLs and passwords.