Digital Assets: The Next Frontier
In an increasingly digital world, estates lawyers must consider social media presence when planning and administering an estate. A significant percentage of the population will have at least a Facebook, Instagram or Twitter account, and this percentage is only on the rise. These social media accounts will likely hold a lot of sentimental value, and so the access and management to those accounts will need to be addressed upon death.
Fiduciaries Access to Digital Information Act
Currently, in Ontario, there is no legislation in place that addresses the estate trustee’s access to digital assets upon death. This means that there are no intestacy rules relating to social media presence, and so, if this is not addressed in the will, or if the estate trustee does not know the passwords to the accounts, then the deceased’s social media presence will be stuck in limbo.
In Saskatchewan, however, there exists the Fiduciaries Access to Digital Information Act (the Act) which addresses the estate trustee’s ability to access to digital assets upon death. The Act also allows for other fiduciaries to access digital assets belonging to someone else:
- an administrator for a deceased account holder;
- a property guardian;
- a property attorney; or
- a trustee appointed to hold in trust a digital asset or other property of the account holder to access digital assets on someone else’s
If you are a trustee in Saskatchewan and you need assistance as to how to deal with a digital asset, the Act is of great assistance:
- Section 4 grants ways other than a court order that a fiduciary can access the digital assets of the deceased or The other methods in which how that right of access can be given include a will, guardianship order, power of attorney and a trust;
- Section 6 provides that an estate trustee can access a digital asset of the deceased and how the estate trustee can take action relating to the digital asset that could have been taken by the deceased account holder if the account holder were alive – essentially stating that the estate trustee is deemed to be the authorized user of the digital asset;
- Section 8 provides the details on how an estate trustee can interact with the custodian of the digital asset to obtain access; and
- If all fails, 9 allows for an estate trustee to apply to court for directions.
In a Globe and Mail article from Oct. 7, 2021, titled “Why your digital footprint needs to be a part of your will” by Joel Schlesinger, Kimberly Whaley of WEL Partners described the workaround for Ontario as “creating a list of accounts and password information for a spouse or trustee to access in the event of a death or incapacity” and added that an authorization is likely needed for the spouse or trustee to access the digital assets.
This workaround, while extremely practical, requires the user to take the proactive steps to ensure that their digital assets are protected. The percentage of the population who have wills executed is around 49 per cent. Of the 49 per cent, we can only speculate that a small percentage of half the population will have signed an authorization regarding the digital assets of their estate.
Legislation like the Fiduciaries Access to Digital Information Act needs to be enacted to protect the population from a significant loss of digital assets. The adoption of legislation in order to keep up with the population’s growing accumulation of digital presence is necessary, and it needs to happen now.