Estates & Wills & Trusts

Deal with digital assets in your will

By AdvocateDaily.com Staff

Testators need to turn their minds to their digital assets just as much as their physical ones, Toronto trusts and estates lawyer Patrick J. Aulis tells AdvocateDaliy.com.

Despite the fact people live more of their lives online than ever before, Aulis, founder of Aulis Law Firm Professional Corporation and North York Mediation, says his clients rarely make any mention of their various social media, email and other accounts related to their digital lives.

“I’m usually the one to address it with clients,” Aulis says. “It’s something those of us in the field of estates law are more aware of, and there is more literature coming out with respect to the issue.”

Some U.S. states have begun drafting legislation to deal with estate administrators’ rights to access, control and terminate digital accounts of the deceased, but no Canadian jurisdiction has yet to take concrete action to offer some guidelines for estate trustees in this country. Aulis says testators can make their lives easier by making their intentions known before death.

In addition, he says the growing threat of post-mortem identity theft is another incentive to act.

“Once you’re no longer around to manage the threat of identity fraud, someone could take advantage,” he says. “Many of these third-party providers will not know of your passing, so if somebody hacks into your accounts, they may be able to use them to carry on whatever nefarious activity they like without being caught.”

Aulis has come up with a three-step process for all individuals to work into their estate planning processes.

Identify your digital assets

“Facebook and email accounts have become ubiquitous. These are products that most people use and take for granted,” Aulis says.

However, he says those are usually the bare minimum when it comes to online life. Many users will routinely shop, bank and pay bills online, using a variety of personalized accounts.

“Try to create a list that contains all the digital assets you might have,” Aulis adds.

Come up with an access plan

A list of assets alone can only be of so much use to trustees, Aulis says. The next stage involves discussing what access, if any, the testator would like to make available to estate administrators after their death.

“How are they going to get into all these accounts. If you have user information and passwords stored somewhere, they will need those too,” Aulis says.

Leave instructions

After coming up with a strategy for allowing trustees to access digital accounts, Aulis says the final step is to lay out what should happen to the accounts going forward.

Some sites, such as Facebook provide a limited set of options for users: “You can memorialize the account or shut it down,” Aulis says.

Others, such as Paypal, may have a more tangible value associated with them: “If there’s money or redeemable points left in accounts, that could be something that needs to be distributed among beneficiaries,” Aulis says.

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