Failure to plan for your digital assets can have consequences
News that Apple demanded a Victoria widow obtain a court order in order to retrieve her dead husband's password is a good reminder to consider your digital assets when preparing or reviewing your estate plan, says Toronto trusts and estates lawyer Suzana Popovic-Montag.
According to the CBC, Apple initially demanded that 72-year-old Peggy Bush obtain a court order to retrieve her dead husband's Apple ID.
Bush told CBC, "I thought it was ridiculous. I could get the pensions, I could get benefits, I could get all kinds of things from the federal government and the other government. But from Apple, I couldn't even get a silly password. It's nonsense.”
Bush’s daughter provided Apple with the serial numbers for the couple’s iPad and computer, her father's will that left everything to his wife, and a notarized death certificate — but was told it wasn't enough.
Apple has since backed off on requiring a court order, but the requirement to provide a will and death certificate is fairly common when someone is seeking account information such as passwords, says Popovic-Montag, managing partner of Hull & Hull LLP.
Technology has become so ingrained in our lives, that we may overlook our digital assets when preparing or reviewing estate plans.
“Technology plays a greater role in our everyday lives,” she tells AdvocateDaily.com. “We now use password-protected technology to pay our bills, communicate and socialize with others, store our photos and music, and to promote ourselves and our businesses.
“By using technology in these ways, we are constantly creating and amassing digital assets and therefore stand to leave behind a multitude of digital content when we die,” she says. “As a result, digital assets are quickly becoming an increasingly relevant consideration for estate planning purposes.”
There are fairly obvious digital assets, such as your email, online banking and social media accounts like Facebook, LinkedIn, Twitter and Instagram. But there are also point reward programs (Shoppers Optimum Points, Aeroplan/Air Miles), digital libraries such as iTunes, online sales accounts (Amazon, Etsy, eBay, Craigslist, Kijiji) and monthly account withdrawal authorizations (cellphone, utilities, memberships, subscriptions) that should be considered.
“Failing to plan for your digital assets can have consequences — for your loved ones and for your digital legacy,” says Popovic-Montag. “No right of survivorship currently exists for digital assets so your surviving loved ones are often faced with challenges when trying to access or delete online accounts, as was the case with this widow trying to obtain her deceased husband’s Apple ID."
The problem, says Popovic-Montag, is legislation has not been able to keep up with technological advances. She says very few jurisdictions have rules with respect to the release of information required to access accounts to family members or friends, absent a court order.
“Different providers have developed different policies regarding what they allow and what they require in order to facilitate access to, or removal of, digital information stored,” she says. “Unless someone is aware of automatic bill payments/preauthorized debits, these may continue for months following death thereby depleting assets of the estate.”
By creating a digital estate plan, you can ensure your estate trustee knows your digital assets exist and how you would like them managed. Popovic-Montag says an easy way to do this is to create a password-protected spreadsheet that provides relevant information, such as:
- a description of the assets;
- the web addresses;
- user IDs, passwords;
- account numbers; and
- any other relevant information or instructions.
Popovic-Montag says there are also online services that are designed to assist with storing passwords and relevant information, including, Assetlock, PasswordBox, SecureSafe and Deathswitch.
She says it’s best to appoint a digital estate trustee who is technologically savvy, can handle the responsibility, and is also a person you trust to handle your affairs. Let this person know what you would like done with your digital assets. For example, do you want your Facebook account memorialized or destroyed?
Many providers now have a means for their users to plan for their assets, grant access to a nominated individual for limited purposes and/or leave instructions regarding end-of-life wishes, she says, but there is no standard procedure or service offered by all.
Facebook, for example, introduced a feature called Legacy Contact, which lets users of the social network authorize another person to access or modify their account after they die. Google has Interactive Account Manager, which allows account holders to control how information will be dealt with after a prolonged period of inactivity. Meanwhile, Twitter will work with a person authorized to act on behalf of the estate or with a verified immediate family member of the deceased to have an account deactivated but will not provide access to the deceased’s account regardless of relationship.
Popovic-Montag says it’s important to keep in mind that not all jurisdictions will have the same services available.
“Some services offered in relation to digital-estate planning might be intended for, and only available, to users in the United States or another country,” she says.