Public and institutional awareness of the intersection of digital assets and estates has grown exponentially over the last few years. Our colleagues at Hull & Hull LLP have written about the topic of digital assets and estates here and here.
Issues ranging from lost fortunes in cryptocurrencies to access to a deceased’s Facebook account have made headlines with increasing frequency. A Time Magazine article from 2019 discussed how, within the foreseeable future, the number of dead users on Facebook will outnumber the living.
While ensuring proper administration of these digital assets on the passing of their owners is critical, it also raises interesting questions concerning privacy rights. Who should access these massive troves of information and what should this access look like?
A recent article we came across discussed the burgeoning legislation around this issue. In the United States, where many major tech companies are based, the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) sets out rules regarding access to a deceased’s digital assets.
The RUFADAA, by default, grants access to a fiduciary (someone named in a power of attorney, an executor of a will, a trustee, or a guardian of a person) of the deceased who has been given explicit permission to access the subject assets.
In Canada, we have seen similar legislation enacted in Saskatchewan, with the Fiduciaries Access to Digital Information Act (FADIA), which defaults to permitting a fiduciary access to digital assets barring contrary directives in estate documents or a court order.
It is a positive sign that legislatures are turning their minds to these issues. However, caution may be warranted until we have seen how such localized legislation handles the often global and non-localized nature of digital assets.
It is also interesting to consider that, with many social media and other online communication platforms, one’s account also maintains a record of other individuals’ information. People may share highly intimate and sensitive information in private emails and messages, which then potentially come under the control and eyes of a fiduciary on the recipient’s death. It is unlikely that the individuals sending messages are contemplating the receiver’s death and eventual access of a fiduciary to that message.
As we tread into this new area of law, we should keep our minds open to the variety of new and potentially surprising issues that may arise.
Thank you for reading and have a great day!
Suzana Popovic-Montag & Raphael Leitz