March 8, 2013 Hull & Hull LLP New Media Observations Tags: 0 Comments

You don’t usually go to concerts. With kids and work, you are really busy. Yet, you really want to see that band. You arrange for a babysitter. You sit down at your computer to buy tickets.  You snag awesome seats. You go to pay and the website asks you to create an account. You type in your email address and create a password: soexcitedfortickets@imfinallygettingoutofthehouse.com and Joanie<3sChachi.   ERROR MESSAGE – Incorrect password. This email is already assigned to a previous user. Damn! What was your password? Then you notice the “forgot password” button. What was the name of your first pet?  You enter “Skippy the Great Dog Prince of 17 Home Street”. Sweet! You’re in. Put in your credit card information, buy your tickets and you and your spouse are set for a date night!

For many of us, the above is not an uncommon experience.  In fact, you probably have online accounts in vast numbers. It is difficult to remember them all. Facebook, Twitter, LinkedIn, Gmail, Flicker, iTunes, Ebay, PayPal, Amazon, Netflix, Banking, and Credit Cards. This is only the preliminary list of places you probably have an online account. If you do a lot of online shopping you might have accounts with Gilt, Jetsetter, or the Bay. Looking for a deal? Maybe you have a Groupon, Teambuy, or WagJag account. Your online presence is likely far greater than you remember. 

Passwords change all the time. We are in fact encouraged to use a variety of passwords and constantly change them. Don’t forget to make sure it has at least 6-8 characters with capitals and numbers. This is all well and good while you are alive. You are likely to remember the exact name of your first dog. After your death, when faced with this same problem, your estate trustee, if they are lucky, might remember that your dog’s name was “Skippy”. ACCESS DENIED.

This may be the best case scenario for an estate trustee trying to shut down an online account. In many cases, estate trustees are outright denied access to accounts on the basis that the account is not truly an ‘asset’ of the deceased. Social Media is in many cases, exactly what it says it is – Social. It is interactive. On your death, it continues. This can cause emotional heartache, or financial obligation (some websites have a yearly fee that automatically gets deducted), not to mention frustration to your estate trustees, among other issues. There is a good chance your estate trustee wants to shut down these accounts.  As you can imagine, problems arise.

A recent article published in Pepperdine Law Review discussed the implications of online presence in Estate administration and litigation in the United States (For a brief synopsis, see the Forbes article on the paper here).  In Canada, there has been little litigation over this issue.  However, how to deal with your digital legacy has been discussed in the Estate world for some time.  On our website alone there have been several postings.  What I found particularly interesting about the Pepperdine Article, is that much like passwords, the world of dealing with digital assets is constantly changing.  Who can claim ownership of those digital assets, and how to do so, not to mention the potential ‘conflict of laws’ issues, is something that legislators and will drafting solicitors will likely be grappling with for years to come, and is unlikely to stagnate.

For now, keep in mind the long term implications of creating any online account, and how that account will need to be managed after your death. After reading the Pepperdine paper, I don’t think that concrete and enforceable answers for planning purposes are easily found, but in my experience, awareness of the problem is the first step to solving it.

Have a great weekend,

Nadia M. Harasymowycz

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