The definition and scope of digital assets is ever-evolving as technologies develop. Our social, financial, personal and professional landscapes have undergone a shift with the advent of YouTube, Twitter, and Bitcoin (to name a few digital products). It is no surprise then, that the existing legal frameworks are either silent or ineffective when it comes to dealing with digital assets within an estate.
On November 7, Ashley Naipaul and Kathryn Balter of our Wills and Estates team will be speaking at the 2022 ALCO/Government of Ontario Educational Conference on the topic of Dealing with Digital Assets on Death.
There is currently no legislation in Ontario that governs the issue of access to and disposition of digital assets upon an asset-holder’s death. As a result, estate trustees are left to navigate this issue in the context of privacy law (i.e. PIPEDA), service agreements (which are often subject to governing laws outside of Canada) and estate law principles.
Individual testators may try to fill the gap by expressing their wishes for the transfer of their digital assets in their will, however, an estate trustee’s ability to implement these wishes is hampered when he or she is not provided with the necessary credentials (i.e. passwords, a digital wallet, etc.).
Given that digital assets are varied, it is also difficult to assess their value for estate purposes and, relatedly, the extent to which an estate trustee is justified in pursuing access to a given digital asset.
In this session, Ashley and Kathryn seek to provide an overview of:
- the nature and types of digital assets that may form part of an estate
- the intersection between privacy law, estates law, and service agreements as it relates to access to digital assets; and
- the practicalities of dealing with digital assets as part of estate administration.