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Digital Estate Planning in Canada

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Maureen Henry, a mother who lost her son in Ottawa, was granted complete access to her son’s social media accounts, where she thought she could find the answers to her son’s death. But this was a result of a two year battle in court. There are many such stories where the next-of-kin had to fight long court battles just to gain access to their deceased loved one’s social media and other online accounts. .

Yet, very few people consider creating an Estate Plan for their Digital Assets. An individual owns at least 100 online accounts – this includes social media sites, cloud storage, emails, payment and subscription accounts. This exponential growth in online accounts has led to a need to prepare a Digital Estate Plan and a Digital Will for Digital Assets.

Fortunately, the Canadian law has taken steps to ensure you can do this in a legal way.

How does the Canadian Law help you in estate planning for your digital assets?

The Uniform Access to Digital Assets by Fiduciaries Act 2016 (UADAFA) provides fiduciaries, or trustees with default access to the Digital Assets of the deceased person.

The UADAFA addresses four types of fiduciaries: a personal representative of the deceased’s estate, a guardian appointed for the account holder, an attorney acting under a power of attorney and a trustee.

A Digital Asset is defined as anything that is stored in an electronic format. When a person dies or becomes incapacitated, a fiduciary such as personal representative or a guardian, attorney or trustee needs access to these electronic records in order to properly administer the deceased’s or incapcitated person’s digital property.

At present, the law does not deal adequately with how fiduciaries may gain access to these Digital Assets. Nor does it explain what rights the fiduciaries might have when it comes to dealing with the accounts of the owner.

The goal of the UADAFA Act is to give access to the fiduciaries while respecting the privacy and intention of the account holder. The Act holds good to only ‘Digital Assets’ and does not extend to any tangible assets unless it is itself an electronic record.

The UADAFA Act is divided into ten sections. In this post, we will be discussing only a few sections of the Act.

A Fiduciary’s Right to access Digital Assets

  • Fiduciary’s right of access is subject to instructions in a provision in the service agreement that limits a fiduciary’s access to a Digital Asset of an account holder if the account holder assents to the provision
  • If there are more than one documents with instructions to the fiduciary’s right to access, the most recent one holds precedence over the rest.

A Fiduciary’s duties in relation to Digital Assets

  • A fiduciary who has the right under this Act to access Digital Assets of an account holder may, subject to any applicable law, take action on the Digital Asset that could have been taken by the account holder if they were alive or of full capacity
  • If a fiduciary has authority over an account holder’s tangible personal property that is capable of maintaining, receiving, transmitting or processing a Digital Asset, the fiduciary has the right to access any data stored in such assets and is deemed to be an authorized user of the property.

For more information on UADAFA and the other 8 subsections of this Act, have a look at the ULCC website.

Despite this legislation, it is not clear if companies outside of Canada would comply with these laws.

But this is a small blip on the road. You can still take measures to secure your Digital Assets and instruct your next-of-kin to either memorialize, delete or close your accounts after your death. All you need is a Digital Estate Plan.

If you are new to including Digital Assets in your Digital Estate Plan and are looking for more details, have a look at our blog post on Creating an Estate Plan for Digital Assets.