Digital Assets and
Estate Planning in Canada

Digital assets are defined as: 

• social media accounts

• cloud storage

• electronic communications 

• loyalty programs/points

• accounts with retailers

• online photo storage

• email storage

• search history

• location data

• private messages. 

 

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. 

 

Learning about laws with respect to fiduciary access to digital assets is part of the learning journey as we get comfortable with digital assets in addition to other elements of the digital assets planning equation. We’ve brought technology into our homes, our lives and our legacy. So too do we need to bring digital lifestyle planning into our estate plans.

 

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, Québec, and the 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 devices 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 devices of a deceased individual which can make it easier to access the digital assets.

While accessing digital devices is an important step in gaining access to digital assets there are other issues that may arise. For example, many digital assets will be password protected, encrypted, or stored in the cloud. While Saskatchewan’s legislation provides a more efficient route to getting access to digital devices, it is crucial to include the location, passwords, and other access information for all digital assets when developing your estate plan. Having your beneficiaries access your digital device is an important step, but gaining access to the digital assets can be a further challenge if they are not provided with the proper information. 

 

United States fiduciary access laws based on RUFADAA (Revised Uniform Fiduciary Access to Digital Assets) have been adopted in most US states. As this is where the majority of the US tech giants live, they require directives for digital assets while living. This is why we see Canadians needing a US court order to access Google or Facebook if they don’t use their platform specific pre-planning tools. Adding a digital assets clause to a Will is a starting point in helping your executor/fiduciary access these accounts.

 

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.