“It doesn’t have to be your client’s executor. It could be someone they trust to do what they wish with the data,” said Woo. “But, if they don’t do any pre-planning, it’s very difficult for their executor or family members to go back after they die to close those accounts. A lot of the assets, like cryptocurrency, that they may intend to pass along to their family members or accounts that they wish to close become very difficult for their loved ones to handle after their death.”
Woo recommended that advisors ensure their clients include digital assets in their estate plan. They can include a clause in their wills to specifically give their executors authority to access and administer their digital assets. The account information and wishes for the assets, especially for the top five or ten accounts, should then be communicated to the executors. She noted that RBC Royal Trust, as well as most online will providers, now have a standard clause to address that in their wills.
“I suspect that most estate lawyers are now including that clause, too,” she said. “But, it’s always worth asking and having that conversation to protect yourself.”
Woo noted that the Uniform Law Commission of Canada has been developing a legislative framework to provide fiduciary access to digital assets, but only Saskatchewan has adopted it since online service providers, like Facebook, are in California, so may not be subject to Canadian law.
“Putting legislation in place in each province is still a step in the right direction,” she said. “But, it’s going to require working with these big online service providers to get where we need to go for this to be administratively feasible.”
