As you might recall, last Monday’s blog was about cautionary tales which demonstrate the need for prudent estate planning regarding one’s digital assets. I ended that blog on the suggestion that until Ontario accepts the changes proposed by the Canadian Uniform Law Commission’s Uniform Access to Digital Assets by Fiduciaries Act, it is best to err on the side of caution and follow best practices to make adequate estate plans regarding digital assets.
Consider this blog a continuation of last Monday’s theme. Specifically, what are some best practices for digital estate asset planning current to 2021?
Best Practice 1
Review the Terms of Service Agreements (“TOS”) as part of your estate planning.
It is important to keep in mind that a user’s use of social media platforms is governed by contracts called Terms of Service Agreements. For example, Apple’s TOS does not allow for the transfer of contents bought within one user’s account, outside of that account. Whether you will want beneficiaries to inherit assets such as e-books, might be an important consideration before you decide to purchase a library of books using Apple’s platform.
Best Practice 2
Become familiar with each social media platform’s post-death account management tool.
Facebook and Instagram have a “memorialization system”, and Google has an “inactive account manager”. With these tools, users are able to make arrangements in advance, e.g. to select for their account to be memorialized in case of death, or, for its destruction. Keep in mind that smaller social media platforms may not have this tool, as it is expensive to operate. However, most social media platforms will have a delete account option. This option may suffice, unless you wish to pass on the content or value of content on the platform.
Best Practice 3
Make use of independent digital asset administration services.
As an example, the U.S. company named Direct Communication Systems (“DCS”) offers a one-stop shop solution to all digital estate administration issues. DCS will be available to Canadians in 2021. DCS provides a list of over one hundred social media platform providers and will allow users to make directives with respect to any account. It is able to achieve this through its direct agreements with these providers.
Best Practice 4
Make explicit clauses regarding digital assets into your will.
While there is no guarantee that this will work, it is better to have these directions than not. One might wish to appoint a “digital” executor, who is ideally a tech-savvy person that may or may not be the same person as the estate trustee for non-digital assets. Drafting such clauses may be complex. Clauses may depend on the testator’s specific circumstances.
Best Practice 5
Do NOT share your passwords!
This may seem like a practical solution, but there are many downsides. By sharing passwords, you increase the chance of someone breaching your account during or after your lifetime. Further, most social media platforms explicitly forbid password sharing within their TOS. If someone else logs in to your account after your death, you may violate the term of use and cause the account and its content to be deleted for breach of contract.
The importance of digital assets will only continue to grow. As always, thorough planning is the key to a smooth estate administration. These best practices will continue to evolve and change as technologies progress. They are not a substitute for legal advice. Seeking out professional advice from a lawyer specializing in wills and estates can help with all aspects of planning and administration.
The author acknowledges Mr. Demetre Vasilounis for his in-depth coverage of this topic in a recent presentation for the Toronto Junior Trusts and Estates Practitioners’ Group.