Digital wills: Should we start including a ‘digital legacy’ clause in our wills?

Lost in today’s conversation about wills are our digital lives, despite the fact that much of our lives play out online. Should you consider including a digital legacy clause in your will?. Nico De Pasquale Photography/Flickr

TORONTO – What comes to mind when someone asks you about your final wishes?

Your first thought will likely be matters of the heart – how your family will be protected, or whether you chose burial or cremation. But, there are also many legal issues to consider, from Do Not Resuscitate orders and living wills, to how your assets are divided.

Often lost in today’s conversation about wills are our digital lives, despite the fact that much of our lives play out online.

Consider this: Do you know what will happen to your online accounts (think web banking, iTunes, PayPal) in the event something happens to you? Or, have you ever considered what might happen to your social media accounts when you die? Would you want your Instagram account to remain public?

“My wife and I had this discussion after I noticed a birthday reminder on Facebook for a cousin of mine who had passed away three years ago,” said Kitchener, Ont., resident Alex Kinsella.

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“I want to leave my accounts as they are and she [Kinsella’s wife] gave me her passwords so I can delete them if anything happens to her.”

For Kinsella – lead product manager at Waterloo, Ont.-based tech firm Thalmic Labs – discussing his family’s digital legacy may be a natural progression in thinking, but not everyone considers their online lives when creating or changing a will.

According to a recent survey from AVG Technologies, only 16 per cent of baby boomers had considered their digital legacy and only three per cent had taken steps to prepare their family.

That said, digital legacies are an emerging trend.

In February, Facebook unveiled a new feature that allows users to select a “legacy contact” who can take control of their account after they die. That person would be able to choose what happens to the account – presumably based on the account owner’s wishes – whether it be memorialized or deleted entirely.

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READ MORE: Facebook to let users to choose ‘heir’ to manage their account after they die

In 2013, Google introduced a similar feature called “Inactive account manager,” which allows users to tell Google what to do with Gmail messages and data from other services in case the account becomes “inactive” (Google’s polite way of mentioning death).

Can you include a ‘digital assets’ clause in your will?

Tracey Woo, senior manager of professional practice group and estate and trust services at RBC wealth management said digital legacy clauses have become a hot topic amongst estate lawyers in Canada. In fact, she said it’s becoming more common for an estate lawyer to ask you about your digital assets.

“It’s actually become quite commonplace to include a clause dealing with your digital assets in your will,” Woo told Global News.

“[But] although technological advances have moved pretty quickly, our legislation hasn’t, so we are operating in a bit of an uncertain legal landscape when it comes to digital assets and how they can be accessed when you die.”

Currently there is no federal or provincial legislation that addresses how an executor can access your online accounts when you die, or if they even have the right to do so.

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Woo added the issue is further complicated because nearly every online service provider – from Facebook to Twitter – have different polices about what happens to your account when you die.

WATCH: Nicole Bogart discusses ‘digital legacy’ clauses

This is why she recommends putting a clause in your will that specifies what you want to happen to those accounts.

First, Woo recommends writing a clause explicitly giving your executor authority to manage, administer, or sell those digital assets.

She also said you should include a clause that gives the executor power to access those accounts.

Anything from social media accounts, to things like iTunes or PayPal accounts can be included as your so-called digital assets.

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“By granting that authority specifically in your will its hoped that the social media site or online provider will abide by your wishes,” she said, adding that you should also research what each social media site’s policy is when it comes to handing over responsibility for your account.

Passwords, login information and specific details about what you want done with those accounts should be listed in a letter of wishes to the executor kept separately from the will to ensure privacy.

Passwords make things difficult

Here’s where things get tricky.

In theory, you could include a list of online accounts and passwords for your estate trustee in your will, with instructions on what to do with each account. But that password could change 20 times before your will is read.

This means you would have to be diligent about updating that list every time you change your password or even the email associated with that account.

Kinsella admits this is a downfall of his digital legacy plan.

“We do have a process – we just don’t follow it well. We’re supposed to keep [passwords] up to date in the same place we keep our wills,” he told Global News.
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“We’re not diligent with it – but try and remind ourselves when we do other back-ups.”

However, services like PasswordBox, recently acquired by Intel Security, include features that try to make that process easier.

The legacy feature allows you to assign a beneficiary who accepts responsibility to oversee your password data in the event something happens to you.

According to Intel’s Maeghan Smulders, it’s True Key’s most popular feature.

“Never before have we used online sites so often. A few years ago banking wasn’t online – we are moving away from the physical world,” said Smulders. “Being able to have this plan is a big deal.”

“[Plus] I don’t think anyone really wants to go to the lawyer’s office every two weeks to update their will,” she added.

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