Executor Access to Digital Assets

digital blog 1There is no legislation in Canada to govern an Executor’s responsibilities over a person’s digital footprint and assets. Each service provider sets the terms and conditions in the “Terms of Service” that you must “Accept” in order to obtain the service. When was the last time you read that in it’s entirety, if ever?

In the United States, the National Conference of Commissioners on Uniform State Laws, has developed a proposed legislation for adoption in every State called the “Uniform Fiduciary Access to Digital Assets Act”.

It was recently adopted in the State of Delaware.

http://legis.delaware.gov/LIS/LIS147.nsf/vwLegislation/HB+345

Recognizing that an increasing percentage of people’s lives are being conducted online and that this has posed challenges after a person dies or becomes incapacitated, this Act specifically authorizes fiduciaries to access and control the digital assets and digital accounts of an incapacitated person, principal under a personal power of attorney, decedents or settlors, and beneficiaries of trusts. The Act should be construed liberally to allow such access and control, especially when expressly provided for in a written instrument.

The Uniform Law Conference of Canada website (http://www.ulcc.ca/en/ ) does not indicate any proposed legislation for Canada.

From a practical point of view there are several categories of digital records and assets that, in my opinion, need to be addressed.

  1. Historical and current digital financial records (invoices, statements, banking records) which an Executor or Power of Attorney for Financial Matters may not be able to access due to password restrictions. Increasingly suppliers are assessing charges to receive paper bills and statements creating a financial benefit for electronic billing and communication.
  1. E-mail providers Terms of Use/Account may restrict the access. Can an Executor maintain the account or do they have to notify the ISP? How can they maintain the e-mail service if they want to close the ISP account as they settle liabilities? How long will it take creditors to issue paper notification to receive payment and what will the interest charges be, especially for credit cards?
  1. Financial assets such as a Kindle library or iTunes purchases. These are governed by Terms of Use/ Account that were accepted when the account was created. Unlike physical books and CD’s ,LP’s etc. which a beneficiary could decide they wanted to keep for future enjoyment, do they have a right of ownership?
  1. Financial assets from loyalty points programs that are only communicated on-line. How can an Executor locate them and can the benefits be transferred to beneficiaries?
  1. Social media accounts are also governed by Terms of Use/Account. Long gone are diaries and photo albums as memory caches.

Leave a Reply

Your email address will not be published. Required fields are marked *