The term "digital assets" is used in different ways by different people. In a broad sense, digital assets include all of the electronic "possessions" an individual may have, including emails, digital photos, videos, tweets, texts, songs and e-books, as well as online account information for websites or programs.
Digital assets have three distinct elements: a digital file or record, the right to use and a method of access. As part of the estate planning process, these elements should be addressed by the client and his or her lawyer to ensure that the executor will have all required information to access and administer the digital assets. Ideally, the client should prepare a memorandum of digital assets to catalogue all digital assets and services. This provides access to such information in a centralized location for the executor. The memorandum should express wishes with respect to how the assets should be handled after death. It is important to maintain tight security over such a list, but also to ensure that it is kept up-to-date and that the executor knows its location.
Executors often have questions on how to administer digital assets, which we address below.
Can access rights be passed on?
The difference between property rights which survive death and contractual rights which often do not survive death can result in a personal representative having a legal right to the files and information stored with a service provider, but having no enforceable right to access that information. Several U.S. states have passed laws providing executors or estate lawyers with powers to access digital assets but no similar laws have been enacted or proposed in Canada.
Access concerns highlight the value in taking appropriate planning steps to pass on access to one's digital assets to executors or heirs.
When is an asset not an asset?
Some services provide the user with a limited licence to access the content in particular ways. For example, Apple's iTunes service allows a user to use downloaded content on up to five authorized devices at a time, and allows each device to store content from up to five different accounts. Such licences are personal rights that expire when the user dies and therefore do not form part of the Estate.
While access to content may continue due to storage on a physical device or continued account access via password, there is no further legal right to the use of such content. In many cases, the licensor will have the ability to delete the account and content if it learns of the death of the user.
What is the "Unauthorized Use of Computer" offence?
Executors administering digital assets must also be aware of the Criminal Code offence relating to unauthorized and fraudulent computer use. Specifically, the Code provides that obtaining "any computer service" "fraudulently and without colour of right" is a criminal offence. "Computer service" includes data processing and the storage or retrieval of data. A Quebec court recently interpreted this offence to mean intentionally obtaining a computer service, while knowing that you are not authorized to do so.
It is unlikely that the Crown would pursue charges against a personal representative for accessing a deceased's online account for bona fide estate purposes, even if such access was technically in violation of the terms of service. In particular, a personal representative who was left passwords and specific instructions from the deceased would have a defensible "colour of right" that should exclude the application of this provision. However, this provision has not been tested in the estate context and a personal representative uncertain about his or her rights to access a particular service is encouraged to seek specific legal advice before doing so.
How does Privacy Legislation apply?
Personal representatives should be aware of their rights to personal information of the deceased under privacy legislation, since privacy legislation may be raised by computer service providers to deny a personal representative access to the account of a deceased. Under the Personal Information Protection Act (British Columbia), the executor is specifically authorized to request personal information about the deceased, and information on how the deceased's personal information has been used.
I am the executor faced with digital assets. How do I start?
- Identify. Ascertain and list all digital assets of the deceased. If there is a memorandum, this should be your starting point.
- Gain access to digital devices. Secure any devices and restrict access. Because the physical property and all the rights to it vest in you as the executor, you are within your rights to circumvent passwords and security measures if necessary in order to gain access.
- Gain access to digital assets. Where the deceased has left passwords for his or her online accounts, ensure that you can gain access. Where you do not have a username/password, there may be another way to request the information.
- Backup. Where possible and appropriate, make local backups of digital assets that may have financial or sentimental value.
- Inventory. List all digital assets for the purpose of accounting to beneficiaries.
- Digital assets having determinable value. Digital assets having realizable present or future financial value should be secured and their value ascertained for probate and accounting purposes. Determine whether the asset is to be transferred in kind to a beneficiary or if it should be prepared for sale.
- Personal and sentimental items. For personal and sentimental digital assets without determinable value, arrange for their transfer to the beneficiaries in accordance with the will or law. If these assets are of a personal nature, they may fall within the Will's "articles" provisions.
- Personal information. Subject to instructions or wishes for dealing with personal information, the executor should protect the privacy of the deceased to the greatest degree possible.
- Liabilities. Determine any liabilities relating to digital accounts and pay them together with other estate liabilities.
- Close accounts. Attend to the orderly closing of accounts where all useful assets have been recovered and the account is of no further use.
We expect that the administration of digital assets as part of the Estate will continue to evolve as the methods of access, type of information, and value of the assets change over time. It is important that testators and executors ensure their planning and administration keep pace with the evolution.