Preserve Your Digital Assets When You Die
The question of who does or should get access to digital assets i.e. a deceased's email or social media accounts, cloud storage or electronic passwords is not addressed in Canadian law. These assets, which include photographs and private and confidential communications, could include potentially embarrassing information such as addictions, affairs or other impropriety. Alternatively, the digital property that remains in the cloud or on electronic devices could be valuable or costly to replace.
Digital assets are often controlled by the provider of the asset, who could take the position that they require a court order to release the asset. A recent situation, covered by the Canadian Broadcast Corporation illustrates this situation (see http://www.cbc.ca/news/business/apple-wants-court-order-to-give-access-to-appleid-1.3405652 ).
Peggy Bush was the sole beneficiary and estate trustee of her late husband's estate. Among his assets were an Apple computer and iPad. Mrs. Bush had the login information for the computer but did not have the password for the iPad. After encountering a few technical problems she was unable to download a favorite game. Without the password, Mrs. Bush could have created a new user ID and password but that would have involved re-purchasing everything in her husband's account. She contacted Apple to obtain the password but was told she would need a court order to do so.
In Canada, there is no law regarding the use and transference of digital assets. This absence of law can be directly contrasted with certain states in the United States, such as Delaware which was the first state to grant an estate trustee access to digital assets. The absence of developed law in Canada means that companies like Apple, Google and Facebook are left to their own policies when addressing digital ownership and succession.
I recommend that the issue of digital assets be addressed in the will by adding a codicil setting out what is to happen to the assets and by including an explanation where the estate trustee can find relevant information including passwords. Specific information such as passwords should not be listed in the will because the will does become open to the public upon probate. While a provider such as Apple or Facebook may still refuse to allow access to a deceased's digital account under their terms of service, having a valid will and passwords will reduce or eliminate many problems associated with transferring digital assets after death.
The content and the opinions expressed here is informational purposes only and does not constitute legal or professional advice. Nor does reading or commenting on it create a lawyer/client relationship with the author. I encourage you to contact me directly at adrianlawoffice@gmail.com if you have specific legal questions or concerns.
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