Canadian law on digital assets not well developed
For Dave Iverson, it’s unlocking computerized financial information of deceased clients. For Nicole Garton-Jones, it’s having deceased clients appear on her LinkedIn home page in the “People You May Know” section. It’s all part of the digital information trove people leave behind when they die, information their next of kin needs to handle.
The notion of personal digital asset management isn’t yet widespread, perhaps because of the age people tend to be when they get their affairs in order.
Garton-Jones, founder and managing partner of Vancouver-based Heritage Law, says her estate planning clients tend to range from 55 to 75 years of age. Clients of Toronto-based Sara Riboldi, a specialist in Italian-Canadian legal matters, are either older or in their 30s and starting families.
Yet discussion of digital assets rarely happens even in the latter group.
But awareness is starting to spread. Garton-Jones recommends all her clients draft a “hit by a bus” memo. “If you get hit by a bus and somebody had to step in [to settle your affairs], we recommend that people list all their assets — bank account information, insurance, etc. — in one location,” she says.
The list can be on paper or in a pass- word-protected document. Iverson, the Vancouver-based senior manager of specialist advisory services for Grant Thornton, suggests people share passwords for this list with those they trust and teach them how to access it.
Computerized financial packages increasingly supplant paper financial records, so being able to access them is critical.
Canadian law dealing with digital assets isn’t as highly developed as it is in certain American states. For example, in Nebraska, a law set to come into force in January gives an executor the right to deal with a deceased person’s digital assets.
Creating the list
Given the number of “places” where people can create information, whether online or in other password-protected systems, Riboldi suggests a strategy for listing them. “Divide them into assets that have economic value and those that have sentimental value. You’ll start to build a comprehensive list.” While many assets fall into both categories, what matters is that the assets all make the list and the person’s wishes for each asset are explicitly recorded.
Domains
Some sites host e-commerce activity and generate online advertising revenues, and if their domain names expire, next of kin may lose this value. “Domain names are tied to credit cards, and credit cards are cancelled upon death,” says Adele McAlear, social media expert and owner of DeathAndDigitalLegacy.com.
People may carry balances on sites such as eBay, Amazon or PayPal along with less obvious places, such as online poker sites,
“People don’t think about all the different places they touch on the web,” Iverson says. “I might have bought something from Mountain Equipment Co-op online, so I have an account with MEC even though I only bought there once. If I’m asked to list all the accounts I’ve created, I might forget about the MEC one.”
Economic value can also reside in less obvious places, such as Second Life and other “networks” where people accumulate value.
People establish stores on sites like eBay or Etsy. Over time they amass goodwill that a person taking over the stores can profit from.
“You may have spent hundreds of hours developing a World of Warcraft character,” McAlear says. “That’s worth money.”
Watch McAlear’s talk on the subject at TEDx Concordia
In the mid-2000s, a U.S. Marine died in Iraq. His family wanted his e-mail account, and had to sue the service provider to get it.
“The provider automatically deletes e-mail [upon death of the account holder],” Riboldi explains. “The provider argued that it’s protecting privacy. The other side had sentimental interest in the account.”
McAlear adds: “In the past, service providers put the contents of an e-mail account on to a disc and sent it to you, but then they closed the account. You can’t manipulate the account yourself. The account itself is non-transferable.”
Keeping non-transferability in mind, executors may need to use e-mail addresses that they can access to reset passwords for online services.
“Leave guidelines for what you want your executor to do,” with your social media presence, Garton-Jones advises, especially since people don’t necessarily want their accounts to be deleted. “A Facebook page could become a memorial page.”
There is also a potential conflict between “real-life” people, such as family and work colleagues, and online acquaintances and friends. “If the family wants to shut down social media accounts, online friends don’t get a say,” McAlear says, adding that the presence of the deceased gets cut off from people who only ever knew the person online. Those people can help spread the news of the person’s passing, so McAlear suggests compiling a list of trusted contacts in each community an individual belongs to.
Entertainment assets
The days of paper, vinyl and discs are fading, and along with them, the ability to transfer ownership of book, music and video collections.
“Some people expect to be able to bequeath e-books like they would CDs or DVDs,” McAlear says. “It doesn’t work that way. All you purchase is a non-transferable license to use the work, not the work itself.”
Computers, smartphones, tablets and other devices can help executors accomplish a variety of tasks, as long as they have the access codes to unlock the devices and the cables to upload their information from mobile devices to a computer, from which executors can more easily search the information and make copies if need be.
This article originally published by Lawyers Weekly Magazine. For a PDF of the print article, [gview file=”https://luigibenetton.com/wp-content/uploads/2012/11/Digital_assets.pdf”].