Digital Assets and
Estate Planning in Canada
Digital assets are defined as:
social media accounts
accounts with retailers
online photo storage
More recently digital assets have also come to include NFTs (non-fungible tokens) and a growing number of cryptocurrencies.
Digital assets are an important part of your life and legacy planning. As such, they should be included in your EstateBox.
With the notable exceptions of Alberta and Saskatchewan, current privacy legislation does not allow for executors, trustees, or administrators of estates to access digital assets in an efficient manner.
Currently, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Ontario, Prince Edward Island, Quebec, and Yukon make it challenging for executors, trustees, or administrators to access the digital assets of a deceased individual. In these provinces and territories, there is no specific legislation granting access to digital assets by executors, trustees, or administrators unless that information has explicitly been provided by the deceased within their will.
In Alberta, the legislation was updated to clarify the authority of a trustee when administering an estate. That authority now extends to digital assets. This means that digital assets are intended to be included within the scope of estate assets that a trustee is authorized to administer.
Saskatchewan is the only province in Canada to enact legislation related to digital assets and estate planning based on the Uniform Law Conference of Canada. The Act creates a default rule that a Fiduciary (as named in your will or power of attorney) is able to access the digital assets of the respective individual which they are in the Fiduciary relationship with. This default rule can be changed by the terms of a will of the deceased; letters of administration; a guardianship order; a power of attorney; a trust; or by court order. The Act creates a default rule that a Fiduciary will have access to any personal property that has the capability of storing digital assets, subject to the intentions provided in a will, power of attorney, or trust. This would include, for example, a computer, cellphone, tablet or external hard drive. Saskatchewan provides the most efficient way to access the digital assets of a deceased individual.
It’s critical to understand the local legislation that is or is not in place surrounding digital assets and estate planning. For example, what the Fiduciary/Executor is allowed to do will be important to understanding as a first step in digital asset planning. Failing to research and take planning steps for digital assets could mean digital assets are difficult to access or even permanently lost after an individual passes away.
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Last updated August 2021