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A F O L A B I:
Our Wills and Estates Law Blog

Friends forever? Estate planning and social media or digital accounts.

Access to an internet connection can provide us with plenty of opportunities - from global networks of hobbyists to platforms for sharing thoughts and pictures to marketplaces with goods you can’t find locally. Participation on these platforms can be rewarding and fun, but what happens to our online presence when we pass away?

It is evident that we can’t upload a new post to Instagram or browse for a rare pair of sneakers from the great beyond. However, many of our accounts will remain active, and any assets left on the web, like rewards points, gift cards, and alternate currencies will be stuck in limbo. Furthermore, monthly subscriptions may continue to be charged to the credit card.

In addition to the wealth that can be contained in accounts on websites such as PayPal or in cryptocurrency wallets, collections of online games, music, or films, the sentimental value of memories locked into photographs and other social media posts can be substantial. For this reason, it is crucial to include details of what you wish to happen to these assets and accounts in your Will.

Know Them and Categorize Them

The first step in properly addressing the question of what happens to digital assets after a person passes on is to have the person comprehensively list every “internet access asset” she or he has. Let’s think of “internet access assets” as every account you have online. That could be anything from Facebook to your online banking access details.

Then, categorize them. The truth is, they aren’t all the same. Which ones concern money? Which ones are all social and fun? Which ones are for work or for running a business? Which ones relate to travel? They’ll all have rules that will be similar based on the industry or concern they relate to. For example, for rewards points at certain companies, the value would not be transferable to another person, and may be reclaimed by the company when a person passes away. For online banking access, it may not be in keeping with the banking agreement to simply have the executor of the deceased person take over the username and password in order to get things done for the purposes of the estate.

Still, the first step in providing an executor with the tools to do her or his job is the inclusion of account access details - usernames and passwords - within the categorized list. This, of course, underscores a related point a Wills and Estates lawyer would readily reiterate to every client - estate documents should be kept in ironclad form. Leaving a Will in a drawer, along with account details for every internet access asset, would not be very wise. A safety deposit box or a lawyer’s office would be much more ideal.

What Gets Shuts Down? What Lives On In Digital Valhalla?

Having categorized your internet access assets, the ideal step would be to separate the items in each category into two - the accounts you wish to have shut down, and the ones you wish to have live forever in digital nirvana … or digital valhalla.

For accounts to be shut down, clear instructions can be added to your Will, and their very presence in your Will would be useful to the companies or institutions that maintain the websites at issue. In many instances, and for obvious reasons, email accounts would be on the shut-down list. Part of shutting an account down might include the prior transfer of assets with monetary value or with emotional value. The process might also include the prior purchase of physical goods that would belong to the estate and be available for distribution to beneficiaries, using points, or the payment of the debts of the deceased, using points.

Know What You Want To Give Away

The sad truth is that not much thought has been put into estate planning for the digital world. So, there aren’t really a lot of digital-world-specific rules in place. Some of the bigger players are starting to “get with the program”. For example, Facebook, through Legacy Contact, allows an account holder to designate a person who would have access after death. Google, through Inactive Account Manager, allows much the same thing, and extends the access to cases of incapacity.

That said, the majority of companies and institutions are still grappling with the issue, or perhaps just ignoring it. A recent University of London study found that 85% of cloud services providers don’t have terms in place to deal with incapacity or death. So, what to do? Well, the rules of the non-digital world can in many cases apply to digital assets. That includes, with some contractual and other limitations, the ability to give an asset away as a gift. The larger and more valuable the asset, the more likely time can be put into designing a custom legal solution to have it dealt with exactly as you’d like.

Beneficiaries can be named as recipients of some digital assets, much in the same way that beneficiaries can be left a house, a dog, or a collection of antique spoons. For example, after the tragic passing of Anthony Bourdain, the probate of his Will revealed that he left his frequent flyer miles to his estranged wife. As a travel writer and TV show host, there is wild speculation about the quantity of miles she was bequeathed. Whatever the total may be, Bourdain was right to recognize the value in these digital assets and to pass them on to someone who could make good use of them.

The opposite case on point is that of Gerry Cotten, the founder of Quadriga - Canada’s largest cryptocurrency exchange. He died suddenly at the age of 30, leaving behind unaccessible cryptocurrency worth about $250 million. No plan, no accessible details.

The real life and real death examples of both Bourdain and Cotten go to show that with “internet access assets”, the estate planning stakes are only becoming higher. Even for those without $250 million lying around on a computer, getting it right for those digital things of value - however little or much they may be worth emotionally and financially - is critical. At AFOLABI, our lawyers are able to include a comprehensive digital estate strategy within your overall plan. With offices in Toronto and Ottawa, and the ability to provide legal assistance in all parts of Ontario, we can readily assist. We can be reached by phone at 1-888-59-WILLS. You can also set up a consultation right on our website.
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