A Bill known as Senate File 2112 that was recently passed by the Iowa legislature has the potential to enhance the access of fiduciaries to digital assets. As it currently stands in Iowa, many other states, and Canadian provinces including Ontario, the law has not been formally amended to reflect technological advancement and the prevalence of digital assets in estate administration. This represents a major problem in situations where an individual has not considered his or her digital assets when creating or updating an estate plan. The result is most often that digital assets and online accounts are inaccessible or accessible only after a Court Order is obtained, a process that may add significant time and cost to an otherwise simple estate administration.
Senate File 2112 provides that fiduciaries, which class is explicitly stated to include estate trustees, guardians, and those authorized to act under a power of attorney, may access digital information on behalf of an incapable or
deceased person who has authorized them to do so.
In circumstances where there is no written direction granting access of the fiduciary to the user’s information, an estate trustee is permitted to access a deceased person’s digital assets upon providing the following to the custodian of the assets:
- A written request for disclosure;
- A certified copy of the death certificate;
- A certified copy of probate, an affidavit made pursuant to the Bill, or a file-stamped copy of the court order authorizing the fiduciary to administer the estate; and
- If requested by the custodian of the assets, any of the following:
- A username or other unique account identifier to identify the user’s account;
- Evidence linking the account to the user;
- An affidavit stating that the disclosure of the digital assets is reasonably necessary for administration of the estate; and/or
- A finding by the court that either (1) the user had a specific account with the custodian of the assets, or (2) disclosure of the digital assets is reasonably necessary for administration of the estate.
The provisions of the bill are intended to apply unless the power that it provides is restricted by Court Order or limited within the document appointing the fiduciary.
Until similar legislation is enacted in Ontario, drafting solicitors should remember to canvass the important issue of digital assets and accounts when assisting clients in creating or updating estate plans to prevent inaccessibility during incapacity and/or following death.
Have a great weekend.
This week on Hull on Estates, Paul Trudelle and Josh Eisen discuss a private member’s bill that was recently voted down. Before its demise, Bill 120 had proposed a number of interesting changes to probate fees in Ontario, including a maximum fee and deductions for charitable bequests.
Ellen Roseman, “Ontario’s Estate Tax Highest In Canada: Roseman” Toronto Star (6 October 2015)
Bill 120, An Act to amend the Estate Administration Tax Act, 1998, 1st Sess., 41st Leg., Ontario, 2015 (as voted down by the House of Commons 24 September 2015).
Should you have any questions, please email us at email@example.com or leave a comment on our blog below.
Click here for more information on Josh Eisen.
Chinese real-estate tycoon, Yu Pengnian, announced this past April that he was donating the last $500 million of his fortune to his charitable foundation on philanthropy. He was asked by a reporter, whether his children were angry about his donations and responded by stating: “They didn’t oppose this idea, at least not in public.”
|It is not uncommon for billionaires to donate their fortune. For instance, Warren Buffet and Bill Gates started a campaign called "The Giving Pledge." At that time, they had four billionaires pledge to give away half of their fortune upon their death. Now there are 40. My colleague, Nadia Harasymowycz, recently blogged on this topic, which can be found here: Leaving it all to Charity – A Good Plan or an Estate Litigator’s dream.
The idea of giving away your fortune is a strong shift from the traditional idea of passing down your wealth, from generation to generation. Why this switch in estate planning? Yu stated: “If my children are competent, they don’t need my money. If they’re not, leaving them a lot of money is only doing them harm.”
Yu’s message to wealthy families put simply: “Too many wealthy parents focus on preventing their children from failing. But in doing so, they also deprive their children of the joys of self-made success.”
Thank you for reading,
Rick Bickhram – Click here for more information on Rick Bickhram.
Every year on Groundhog Day I can’t help but reflect on Bill Murray and his contribution to the modern North American psyche. It must be a massive ego trip to know that, on one day of the year, most everyone reflects on a movie that you have made. With all due apologies to Punxsutawney Phil and Ontario’s own Wiarton Willie, Bill Murray is to Groundhog Day what Cupid is to Valentine’s Day (that other February distraction). And you can’t escape him. Groundhog Day (the movie) is played endlessly in syndication (especially on, well, Groundhog Day) unrivaled in its mind-numbing repetition except by the inescapable "Bridget Jones Diary" and Murray’s other masterpiece "What About Bob?"
But I digress. Groundhog Day (the day, not the movie) speaks to our deepest yearnings for the coming of Spring in the depths of what is now a very frigid winter. And Groundhog Day (the movie, not the day) observes the mind-numbing monotony of everyday life coupled with the fantasy of excelling at a given endeavour if only given 365 chances to repeat it. There is a lesson in there somewhere…I am just not sure what it is.
Here’s to trying to get it right the first time…whatever "it" happens to be!
David M. Smith
David M. Smith – Click here for more information on David Smith.