In a world where it is quite possible, and even likely, for a person to spend more time online than offline, many still overlook the importance of having a well-considered estate plan for their digital assets. It is easy to think of a person who may not own a home but have multiple email, social network, or social media accounts where “content” — the text, photos, and videos that a user uploads on their social media account — is shared daily. That same individual may also have a highly coveted online gaming account with various rare game “items” that may sell for a few hundred to tens of thousands of dollars (The Guinness World Record for the greatest amount paid for a virtual property in a game is currently $6M USD). The need to dispose of these valuable, whether sentimental or financial, digital assets on death should not be ignored.

Estate planners may want to start by asking their clients to think about their testamentary intentions regarding their digital assets.

• Do they want to transfer their music subscription to a beneficiary?
• What digital assets do they own?
• Do they earn income from their digital or social platforms?
• Would they like their executor to delete all online accounts and digital media associated with them?

Even if those wishes are not made express in a will, clients should consider leaving a detailed memoranda or instructions for their executor so that their wishes can be carried out. It may not be desirable for some to have their photos and videos posted on their social network account permanently accessible by the public.

Next, clients should be encouraged to determine the feasibility of their wishes by reviewing the user agreements for each of their digital assets. Depending on the platform, the ability of an executor to not only access but request to delete a deceased person’s account without directly logging in using the username and password may be limited. In Saskatchewan, The Fiduciaries Access to Digital Information Act came into force on June 29, 2020, and provides that a fiduciary, including an executor or administrator, has the right to access a digital asset of a deceased person, subject to the intentions in a will. To date, no such act is available in BC; and also note that the most popular online platforms are generally companies incorporated outside Canada, which may pose enforcement challenges even if a similar act was available in BC.

Even after gaining access to a digital account, it may not be possible for an executor to simply transfer an account or distribute its contents to another. For example, according to Apple.com, Apple services such as Apple Music cannot be transferred over to someone else, although purchases from the App Store, iTunes Store, Apple Books, or Apple TV may be “shared” with other family members through its platform. As a point of practice, it will be helpful that the appointed executor be familiar with the various digital assets and able to navigate the different online platforms to carry out the will-maker’s wishes.

Another important consideration is whether any of the digital assets would attract probate fees. The current version of Statement of Assets, Liabilities and Distribution (Form P10) requires all applicants to disclose the total intangible personal property, which will necessarily include digital assets of financial value, such as cryptocurrencies, valuable non-fungible tokens, and potentially those rare game items that could sell for a significant amount of money to the right market.