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Understanding the legal framework surrounding digital assets

By Matthias Duensing

The CBC recently reported that Apple demanded that a 72-year-old Victoria widow obtain a court order to retrieve her deceased husband’s password for his Apple ID so she could play games on an iPad.

While this request appears outrageous at first sight, one has to understand the legal framework surrounding so-called digital assets. When an individual opens an account with a website service, a contract is formed between the individual and the company behind the website service. Such user agreements often provide that the individual is the only person authorized to access the website account and most of these agreements do not contain provisions regarding ownership and control of the account after the individual passes.

While you can gain access to someone's safety deposit box in the same way that you can gain access to someone's bank account, under the Personal Information Protection and Electronic Documents Act, there is no law in Ontario that sets out ownership and control of digital assets after someone dies.

As all other estate assets, digital assets can have a monetary value — be it a bitcoin account, an online business or a website that requires you to purchase credits to use their services.

Therefore it is important to provide an executor with the power and authority to access your digital assets in your will. The will should tell the executor where to find a list of website accounts and passwords. This list should not be attached to the will, but rather kept in a safe place and updated regularly.

The list could be kept at the same place where you have a list of your physical assets, such as bank accounts, RRSP, life insurance, etc.

In terms of choosing an estate trustee or executor, and in light of the shifting dynamics of estate planning, it may be wise to select an individual who is comfortable using technology. You may also want to provide your executor with explicit instructions of how you want these assets dealt with.

If you do not have a will, you should speak to an estate lawyer today. If you have a will, you should review it and update if it does not have a clause dealing with digital assets.


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