Digital Legacies: For Now and Forever

Suzana Popovic-Montag for The Lawyers Weekly

December 3, 2010

Digital media has become an important platform for all our communications, whether professional, with colleagues and clients, or social, with family and friends. From a business perspective, we have developed webpages, created email accounts, joined professional online organizations and bolstered our Internet presence. And the influx of social media cannot be ignored. Young and old, we blog, "tweet," sell and purchase almost anything and everything online, and spend hours checking out Facebook, Flickr and YouTube.

Not surprisingly, therefore, one's online presence is something that estate practitioners are increasingly finding the need to consider when dealing with clients, both from an advance estate planning and subsequent estate administration perspective.

Digital assets

For the most part, the three main components of a digital presence are websites, social media accounts and email addresses. Websites tend to be created for business or for recreational reasons, and some can have both economic and sentimental value to the creator. Facebook and LinkedIn carry high importance for their owners, given that substantial communication is done through these mediums.

What is the legal status of these "assets" on death? And how does an executor deal with the unique legal, practical and administrative issues that arise as a result of one's digital presence and the digital footprint left behind? As practitioners, these are questions that we are facing more and more frequently, and the answers to them involve both practical and legal considerations.

The basics

Almost all forms of digital media require acceptance of terms of use (which are rarely, if ever, read and even less likely to be understood) and a user-generated name and password. Internet banking, PayPal and iTunes accounts, social media platforms and email accounts all contain confidential personal information and require access to their content in this fashion. Practically speaking, a list of all such media and the associated passwords is a simple first step to managing one's digital identity.

The next issue is what should happen to these assets on death. Sometimes this is easy to answer, when the asset's utility "expires" on death: emails and social media accounts no longer need to be accessed. But what about the content of things like webpages and Facebook accounts? Who owns, for instance, the pictures and the text, and what restrictions are faced by personal representatives when trying to access this content after death?

The law

From a legal perspective, the primary focus is on the areas of copyright, contract and estate law. Copyright prevails over the content that has been created on webpages and YouTube videos and protects it on death. Contract law controls the medium that is used to launch the various applications-that is, the licence agreements and terms that are readily accepted with service providers in order to set up the accounts.

And then there is estate law, and the whole question of who has the authority to deal with the digital assets on death, and to what end.

Managing a digital presence

When we meet with clients who are looking to create estate plans and prepare wills and powers of attorney, exploring their digital presence is becoming as important as determining "who is to get what" in terms of personal property at the end of the day. As practitioners, we are now canvassing the nature and extent of our client's "digital footprint," collecting passwords, discussing where they will be stored, and what will be done with (or who will become beneficiaries of) various digital assets once clients become incapable or die.

We are considering with clients whether they would prefer their attorneys or executors to preserve their Internet profiles (by managing and controlling them indefinitely in the future) or perhaps eliminating them altogether. And this, of course, will depend on the particular asset and, in many cases, the rules and regulations of the service provider.

A further consideration, however, is that of jurisdiction and possible conflict of laws issues. Even if we empower attorneys and executors with authority to act in our clients' stead or pursuant to our clients' wishes, we may not be able to control whether that authority is recognized and accepted abroad.

In other words, even if an executor were to obtain probate in Canada, there is no guarantee that an Internet service provider based in a foreign jurisdiction would recognize the executor's authority to act or direct as he or she sees fit. This remains a struggle for practitioners, one that we cannot easily overcome.

There is no doubt that we have embarked upon a new and exciting adjunct to our traditional estate planning. Digital assets, and the unique complexities that arise in converting them into digital legacies, will undoubtedly continue to evolve with the proliferation of the Internet. The sooner we recognize this, and incorporate it into our daily practice, the better.

Suzana Popovic-Montag is the managing partner of Hull & Hull LLP in Toronto, practising exclusively in the areas of estates, trusts, capacity and fiduciary litigation. She is also a specialized estate mediator.

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