Legislating Digital Assets

July 25, 2013 Hull & Hull LLP Estate Planning Tags: 0 Comments

The state of Virginia has recently given final approval to a Bill which gives parents and legal guardians access to a minor’s social media accounts after their deaths.

HB 1752 stipulates that:

“…the personal representative of a deceased minor has the power to assume the deceased minor’s terms of service agreement for a digital account with an Internet service provider, communications service provider, or other online account service provider for the purposes of consenting to and obtaining the disclosure of the deceased minor’s communications and subscriber records. The provider shall provide the personal representative with access to the deceased minor’s communications and subscriber records within 60 days from the receipt of a written request from the personal representative and a copy of the deceased minor’s death certificate”.

Therefore, all that seems to be required is a copy of a death certificate and a written request before access is granted to the deceased minor’s communication and subscriber records.

The state of Nebraska has also introduced similar legislation.  Here, unless otherwise restricted by a Will or court order, a personal representative has the power, “…to take control of, conduct, continue, or terminate any account of a deceased person on any social networking web site, microblogging or short message service web site, or email service web site”.

Although a hot topic in recent Hull & Hull LLP blogs, here, here, and here, as well as causing widespread discussion in the estate planning community, no such digital asset law exists yet in Ontario.  Therefore, in order to ensure digital assets are properly dealt with, Suzana Popovic-Montag, in her Huffington Post blog, has suggested providing the following to the person in charge of administering the estate:

·         A list of all accounts, whether it be social media or online banking, with the corresponding login information.

·         Advise of what you want done with your social media accounts.  For example, Facebook provides accounts to be memorialized after death, as an alternative to shutting accounts down.

Further, Suzana’s blog reminds us that like other assets, a slew of problems may arise as to how digital assets are to be dealt with.  Therefore, discussion should be had with experienced professionals  who are knowledgeable about estate administration issues.

Noah Weisberg

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