By: Jonathan M. Weigand

To date, there is no provincial or federal law that specifically addresses the authority of the Estate Trustee (aka “Executor”) to access an individual’s digital assets upon their death.  Despite the Estate Trustee’s authority to administer an estate he or she may be denied access to a deceased’s digital assets, irrespective of their authority under the Will. 

If you own digital assets and devices such as computers, a cellphone, crypto-assets, social media accounts, email addresses, online subscriptions, rewards points and the like, we recommend expressly granting your Estate Trustee the authority to access and manage these digital assets in your Will.

At NIKA LAW LLP, we ask clients to consider their intentions for their digital assets and what authority or directives they wish to grant their Estate Trustee In respect of them upon their death.  We also ask clients to confirm whether they want their rights of privacy to extend beyond their deaths in respect of these types of assets and information.

Three of the most common digital platforms: Apple, Google, and Facebook have introduced legacy planning tools that make it easier for their users to specify what is to be done with their accounts after they pass away.

Apple – Legacy Contacts

Apple introduced a new digital legacy feature in the iOS15.2 software update which allows Apple users to designate Legacy Contacts in their Apple ID.  When an Apple user designates an individual as a Legacy Contact, the Legacy Contact is provided with a special access key that may be used on the death of the Apple user to request access to the data associated with their Apple account.  

A Legacy Contact does not need to have an Apple ID or an Apple device to access a deceased’s Apple account as a Legacy Contact but, if they are not an Apple user, it may be necessary to provide them with a copy of the access key directly or leave a printed copy of the access key with one’s estate planning documents.  

When the Apple user dies, a Legacy Contact will simply enter their access key and upload a copy of the death certificate on Apple’s webpage: https://digital-legacy.apple.com.  Once granted access to the deceased’s Apple account, a Legacy Contact will be able to access and download the Apple account data for up to three years from the date when the request is approved.  The Legacy Contact may access information such as photos, messages, notes, and files but, they are not entitled to access all the data associated with the deceased’s Apple account.

For more information on as Apple Legacy Contacts, please visit: https://support.apple.com/en-ca/HT212360.

Google – Inactive Account Manager

Google offers a similar feature to Apple’s Legacy Contact which is known as an Inactive Account Manager.  Unlike Apple’s Legacy Contact, the Inactive Account Manager feature is not exclusive to Google users who have died and is triggered automatically after a certain period of time, set by the user.

Using the Inactive Account Manager, a Google user can designate up to 10 trusted contacts to receive a custom-written email notifying them of their inactivity after a set period of time and has the option to either share their account data with that contact person or having their account data deleted.  The Google user decides on the period of inactivity required before a notification/data will be shared with the trusted contact.

For more information on Google’s Inactive Account Manager please visit: https://support.google.com/accounts/answer/3036546?hl=en.

Facebook – Memorialization Settings

Facebook offers two methods to manage an account when the owner dies.

The Facebook page owner, can either i) appoint a Legacy Contact (similar to Google) or ii) indicate that their account should be permanently deleted from Facebook upon his or her death. 

By default, if Facebook becomes aware that an individual has passed away and the account is not marked to be deleted, Facebook will create what is known as a “memorialized account.”  If a Facebook user dies without appointing a Legacy Contact though, their memorialized account will not be able to be altered or maintained into the future. Although it is possible to request that a memorialized account be deleted, this can be a difficult process.

If the Facebook user has designated a Legacy Contact however, then that individual will have limited access to the user’s account after they die.  The role of the Legacy Contact is to manage a memorialized account after the death of the original user and can download an archive of information shared on Facebook, such as uploaded photos and videos, friends lists and wall posts. The Legacy Contact can also delete the Facebook account easily.

Legacy Contacts will have certain limitations and restrictions in respect of the deceased user’s page – for example, they will not be able to send messages on behalf of the deceased, or remove/add friends. 

For information on Facebook Legacy settings please visit: https://www.facebook.com/help/1568013990080948.

At NIKA LAW LLP, our thorough estate planning process covers all aspects of your Estate, including your digital assets.  As lawyers, we use a belt and suspenders approach to legacy planning and are careful that the designations made using the above platform tools are consistent with one’s Will and Power of Attorney documents to avoid any conflicts.  Whether your estate is relatively small and simple, or large and complex, let one of our team members assist you in planning your legacy.

Contact our office to arrange a complimentary consultation to begin or update your legacy plan.

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