What are digital assets and why is it important to consider these when estate planning through your will, power of attorney, trust documents and living will (personal directive in Alberta).
There is no legal definition of the term for them but most estate planners define these as any digital content including; emails; online banking statements; social-media accounts (Facebook, Linkedin, Twitter and others).
They also include information held on vendor sites (such as credit card information); copyrighted materials (such as purchased music, movies and e-books); digital photos and videos and; domain names (web sites).
It’s obviously very difficult for executors to deal with this issue if they are not aware of the accounts and passwords.
The trustee may be left with a legal right to the files or accounts but the right to access that information is usually exclusive to the account holder and the estate trustee will have no such enforceable right since the access rights are limited to the user.
Your will, power of attorney and trust document should contain the following: ‘I grant the executor the power to access, control, delete and transfer digital assets’. This will allow your executor or attorney to handle your digital assets at death or incapacity’.
List all of your accounts, account IDs, passwords and security questions. Attach this list to your will or make sure that your executor has a copy of this list. Make it a New Year resolution to update this list at least once a year.
If you keep your list in a safety deposit box, replace it anytime you update your list. There are some password-management applications designed to keep passwords up to date, secure and in one location. However, these services can get hacked into which could leave you and your accounts vulnerable, so use them with caution.
Leave instructions to your executor as to what you would like them to do with your digital assets. Do you want your Facebook account closed or would you prefer that it acts as a memorial?
Give authority to a specifically named executor, in your will, to deal with these items. This named executor can be different from the main executor. This often occurs when the main executor does not have the expertise to deal with online accounts.
Give authority to the individual who holds the power of attorney as she will be paying electronic bills and managing your bank accounts.
We recommend that you talk to your lawyer regarding your estate planning documents to ensure that you have taken care of these particular type of intangible assets.
We also recommend that you download the Personal Records book to help you keep track of your personal data. Personal Record