Estate Planning

Digital Assets and Estate Planning

By Hull and Hull LLP

Estate planners now have yet another issue to address: how to deal with a testator's digital assets. 

The term "digital assets" (wikipedia entry) general refers to email, social media, and other online accounts, protected by a password and right to use a specific account.  People are now commonly storing huge amounts of unique data such as photographs, emails and any form of document.  The Michigan case where a court ordered Yahoo to allow executors to access a deceased's email account notwithstanding that Yahoo's terms of use and privacy policy did not allow for a transfer of access, is already five years.

This may already be a professional liability issue.  The information stored in relation to the "digital assets" is arguably no less important than their predecessor "physical assets".  I say "predecessor" because for many people, physical forms of these assets are already quaint.  Other digital assets could have objective financial value; for instance, a PayPal account with a substantial balance, as Michael Panchieri points out.

Without addressing the swamp of legal issues associated with digital assets (even scratching the surface in a meaningful way would require many blogs), I recommend you peruse the following list of sources from Ontario and other jurisdictions to get a sense of how digital assets might fit into an estates plan:

-> mybangalore article expanding on how digital assets fit into estates

-> Dennis Kennedy's article in the American Bar Association's online e-zine Law Practice Today (attribution) 

-> Florida lawyer David Goldman has a must-read blog on what may be a fundamental planning challenge inherent to the nature of the digital asset (hint: it is a license that expires on death...)  

-> a general FT.com (UK) article on companies that offer services to store and pass on passwords and login credentials, link to this example of one such service provider, Entruset.

Thanks for reading,

Chris Graham

Full post as published by Toronto Estate Law Blog on April 16, 2010 (boomark / email).