The Virtual Estate: Are You Talking About This With Your Will Clients?

CBC news recently reported that the average Canadian spent over 41 hours online each month in the fourth quarter of 2012, and that Canadians are the world’s second-heaviest users of the internet (just behind Americans). While there is a great deal of variety when it comes to the nature of this online activity, there is no question that a substantial proportion of it leads to the creation of property that has value – whether it’s objective, measurable commercial value, or simply personal value.

In his article “The legal status of virtual goods” in the May 31 edition of the Lawyers Weekly, Jonathan Mesiano-Crookston described several examples of the creation of virtual assets – some worth millions – by online gaming participants. While most clients will not claim such exotic revenue streams, they may well accumulate points, credits, or other valuable interests and rights through online activity. Even clients who engage in no commercial activity on the internet often use social media, creating accounts, profiles, and original content. There is no question that these activities create value, even if that value cannot readily be quantified in dollar terms.

The value of online activity and content has been taken into account in corporate and commercial transactions for many years now. However, making arrangements for the management of personal online content (sometimes called the “virtual estate”) after a client’s death, via a will or otherwise, is still an emerging practice. In a matte story created by LAWPRO for distribution this spring, we’ve encouraged clients to begin thinking about their virtual estates, and to raise the issue with an estates lawyer.

If you are one of the many lawyers who has not yet had occasion to address a virtual estate in a will, we’d like to suggest that the time has come to begin considering the issue of virtual estates, and to begin speaking with clients.

In many cases, the easiest approach, for clients, is to make arrangements for the transfer of control over online accounts and property outside of the will. For example, a client may, when naming an attorney for property, give that person a list of logins and passwords for online bank accounts and points-collection programs (for example, airline “miles” programs). Spouses may also share this information with each other, to permit seamless access to property that is intended to pass to the surviving spouse.

With respect to social media accounts and other non-commercial activities, it is often useful to advise a client to provide a list of access credentials to a trusted relative or friend so that that friend can close or modify the accounts after the user’s death. There are also commercial services available for the posthumous management of online accounts; however, these generally require that the user provide confidential information to the service, which may not appeal to some.

Ultimately, the most important action to take, for now, with respect to virtual estates is to begin raising the issue with clients. Many wills clients may not have given the issue much thought, and may be grateful for the prompt to begin considering what they’d like to have happen with this aspect of their legacy.

This article is by Nora Rock, corporate writer & policy analyst at LAWPRO.

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Comments

  1. A longish note on this topic appeared in Slaw in early 2012. The draft Uniform Fiduciary Access to Digital Assets Act will have first reading at the meeting of the (U.S.) Uniform Law Commission next month. There is an accompanying issues paper.

    While the Uniform Law Conference of Canada has observers for the US process, it has not begun work on uniform legislation in Canada. Would legislation help?

  2. Yes – it’s a good thing to raise the issue, but the real proof is in how you offer your professional advice in recommending ways to address virtual assets. See, for example, the Estate Dispatch post of a few days ago: http://estatedispatch.com/a-list-of-usernames-and-passwords/. We in the estate planning community can’t just make reference to the subject and hope we’ve done enough.

  3. Another interesting NYTimes article here, which includes useful information on Google’s Inactive Account Manager:

    http://goo.gl/YuGo2