If you started taking inventory of your most valuable possessions, would “digital assets” be on your list? Experience shows that they don’t immediately come to mind for most people, since they are unaware of the value they carry and the complexities they can create in estate planning.

Digital assets include everything from cryptocurrencies to online photo libraries—even the loyalty rewards you earn on credit card purchases. Although they might seem insignificant to you personally, the next generation might find them meaningful for their sentimental value or their contribution to your family’s history.

What Are Digital Assets?

Digital assets usually fall into one of three broad categories:

1. Financial value
   • Bitcoin, other cryptocurrencies, digital wallets, and non-fungible tokens (NFTs) that can be sold
   • Rewards points offered by retail stores, credit cards, airlines, hotels, etc.
   • Intellectual property such as manuscripts, blogs, artwork, films, and musical compositions
   • E-commerce accounts such as eBay, iTunes, or PayPal (which could have income stored online or balances due from customers)
   • Domain names and Web URLs, which can be bought and sold
   • Online gaming accounts
2. Sentimental value
   • Social media accounts such as Facebook, X (aka Twitter), Instagram, YouTube, etc.
   • Text messages and email accounts: Gmail, Outlook, Yahoo, etc.
   • Digital images: Photos, videos and artwork stored on digital cameras, cell phones, personal computers, external hard drives and USB sticks, SD cards, cloud-based services, and online photography services like Shutterfly and Snapfish
   • Audio files such as music or voice recordings you created
   • List of personal contacts
   • Email and chat history
3. Private/confidential
   • Health and banking files stored on your laptop, phone, iCloud
   • Online diaries and digital appointment books
   • Email/chat history
   • Account numbers, passwords and other information that can be misused

What Are the Challenges?

Because technology is evolving so rapidly, laws regarding the disposition of digital assets have struggled to keep pace. More specifically, the rights of fiduciaries such as executors and trustees to access these assets and the obligation of Internet Service Providers (custodians of the digital assets) to allow that access.

“This is becoming more important as we experience the greying of our population as well as the increase in digital assets held by all individuals in our society,” according to the Digital Assets Global Special Interest Group, which is part of the Society of Trust and Estate Practitioners. “This is a worldwide phenomenon.”

But progress is being made. In 2020, Saskatchewan became one of the first provinces in Canada to enact comprehensive legislation with the passing of the Fiduciaries Access to Digital Information Act, which provides fiduciaries with uncontested access to digital assets. Prince Edward Island and New Brunswick passed similar legislation in 2022 and Yukon in 2023.

The main sticking point is that the most popular social media platform providers (Apple, Google, Facebook, Microsoft, etc.) are based in the U.S., which means your executor will likely have to deal with a maze of US laws on digital property. In addition, these online account custodians fear the legal and reputational repercussions of failing to protect the privacy of their customers, which can conflict with an executor’s legitimate need to gain access to online accounts. Every service provider has different rules. Some agreements cancel all rights upon death, while others provide limited ways for representatives to access data, sometimes within a limited time frame.

What Can You Do Today?

Assuming you use digital media in fairly standard ways, we recommend you:

• Take an inventory of your digital life. Make a list of all your online accounts and email addresses along with your usernames and passwords. Keep the list in a safe place, and let your executor or heirs know where to find this list when they need it.
• Appoint someone you trust as your digital estate representative. Seek legal advice if you want someone other than your executor or power of attorney to have this authority.
• Make your passwords available or provide a secure way for your representative to recover or create new passwords. This typically means sharing access to your main email account. Alternatively, consider using a password manager on your computer and phone. These services automatically and securely store your passwords and credit card information in a digital wallet maintained by an online service provider, allowing your representative to access all accounts with one master password.
• Review the terms of service for your most important online accounts. Be sure your will and any powers of attorney contain language expressly permitting your representative to access and control your digital assets.
• Bring up the topic of digital assets when considering or evaluating a potential executor to be sure he or she is comfortable with the technology and related duties.

If you produce online content or own large cryptocurrency balances, income-generating websites, software licences, copyrights, etc., we recommend working with an expert estate planning lawyer to create a customized digital estate plan. This will help ensure your representatives isn’t met with resistance from family members, business partners or other interested parties.

Everything from the playlists you created on Spotify to your viewing history on Netflix can serve as mementos to a life well lived.

In any case, regardless of the assets you think are worth including in your inventory, putting your wishes in writing will ensure that your digital footprint is preserved for future generations.