Personal digital assets can include photos and documents stored in the cloud, social media accounts, genealogy websites and even accounts someone may prefer remain private after death, such as dating apps.miniseries/iStockPhoto / Getty Images
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This is the second article in a series about managing digital assets in estates. Read the first article here and look for the third and final piece next week.
After Matt Thompson passed away in 2015 in the U.K., his widow Rachel Thompson fought for more than three years for a court order that allowed the couple’s young daughter to see the photos Mr. Thompson had stored in his Apple Inc. account. Similarly, when Ric Swezey died in 2017 in the U.S., his husband Nicholas Scandalios waited two years before he could show his two children the photos locked behind Mr. Scandalios’s Apple login.
These two cases highlight the risks of failing to plan for digital assets with personal value in estates.
“More and more of us are living a significant portion of our lives online, [and] digital assets have the ability to reveal us as we lived and in a way no other assets we have do,” says Andrew Higdon, a trusts and estates lawyer with KPMG Law LLP in Ottawa.
“I don’t think you can have a complete estate plan if you haven’t turned your mind to this aspect of a person’s life.”
Personal digital assets can include photos and documents stored in the cloud, social media accounts, websites and blogs, genealogy websites and even accounts someone may prefer remain private after death, such as dating apps.
Without appropriate authority granted to an executor or attorney for property, the fiduciary may be denied access to digital assets. Also, without clear instructions in place, the fiduciary may have to guess at the deceased’s preferences – for example, about whether to remove or memorialize an account.
Generally, the best place to indicate after-death preferences for digital assets is directly on the service provider’s platform – but only some offer this option. For example, Google has an inactive account manager while Apple and Facebook allow users to name a legacy contact.
“Pre-planning tools are quite lacking. They’re very few and far between,” says Christine Brunsden, co-founder at Legacy You in Burlington, Ont.
She’s stepped in to help fill the gap for her clients with a 25-page digital asset organizer that encourages them to itemize devices and online accounts and think through how someone will gain access when necessary.
She’s considering building a chatbot to lead people step by step through the questions they need to answer with the goal of making the process less overwhelming.
“People don’t know how to do it. They don’t know the reasons why they should do it … They don’t even know how to get started,” Ms. Brunsden says. “It’s incumbent upon the advisor to bring this to the fore – but I would say many advisors don’t understand this either.”
Create an inventory and offline backups
Among all the online accounts someone has, only a few may hold data of personal value.
“If you’re disciplined about keeping your passwords in a password manager … then that’s a good place to take a look at what online accounts you have and identify the ones in which you have something important that you want to make sure is saved,” says Dave Madan, market lead with Scotiatrust, Northern Prairies, in Edmonton.
He recommends listing details for these accounts in a document that’s updated regularly and that accompanies the relevant legal documents. Don’t include passwords as sharing passwords is generally prohibited in an online account’s terms of service, but do state preferences for what should happen to each online account in the case of incapacity or death.
Also, rather than relying solely on cloud storage, consider whether some digital assets with personal value can be backed up locally, Mr. Higdon says. A USB key that isn’t password-protected but that’s stored in a safe place accessible to the executor or attorney for property can work well. Making digital copies of photos or a family tree you want to share and providing them to loved ones during your lifetime is also an option.
Sayuri Kagami, senior trust specialist with RBC Royal Trust in Toronto, adds that creating an online backup can be an opportunity to sort through photos, in particular, and streamline the collection. Beyond the backup, she suggests some photos may be shared more broadly right away through social media accounts and, if the platform allows it, kept online in a memorialized account after death.
Consider a digital executor or tech-savvy resource
The executor chosen to administer someone’s estate may not be comfortable working with online accounts. In some situations, Ms. Kagami likes the concept of engaging a person who understands the digital world to navigate this component of an estate, although she emphasizes it’s important to consider carefully how this person is appointed (within or outside the will or perhaps in a separate digital will) and what authority they’ll have. It’s also critical that this person be able to work well with the other executor.
Mr. Madan says that beyond ensuring the person administering digital assets is internet-savvy, one benefit of having a separate “digital executor” is that this person can be instructed to delete certain photos or the browsing history if there are sensitivities around sharing this data with the executor of the rest of the estate.
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