Digital legacies:
for now
and forever
GIOVANNI MERONI / ISTOCKPHOTO.COM
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—clearly, it is everywhere.
Young and old, we blog, “tweet,”
sell and purchase almost anything
and everything online, and spend
hours checking out Facebook,
Flickr and You Tube.
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, Facebook/
LinkedIn 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
SUZANA
POPOVIC-
MONTAG
for their owners, given that substantial communication is done
through these mediums. Almost
all of our clients have at least one
of these.
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 per-
sonal information and require
access to their content in this
fashion. Practically speaking, a
list of all such media and the
associated passwords is a sim-
ple first step to managing one’s
digital identity.
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, how-
ever, 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 pursu-
ant to our clients’ wishes, we may
not be able to control whether
that authority is recognized and
accepted abroad.
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.
