The Canadian Bar Association has recently released, as a part of their “Legal Health Check” series, a new handout talking about what steps and paperwork should someone do if they are planning to travel internationally with a child. As a part of their handout they discuss document requirements and suggestions as well as a tips section on children travelling alone. Have a look at their PDF here: “CBA LEGAL HEALTH CHECK: TRAVELLING WITH A CHILD”
When we think about assets to include in a will people have, for over a hundred years, been concerned about the “big 4” things: house, money, kids, and business. Modern estate planning brings many more concerns, not the least of which are digital assets.
This can encompass many, many things from website ownership or rewards points from loyalty programs through to much more cutting edge digital assets like cryptocurrencies such as Bitcoin. In most cases though, an email or social media account will be far and away the most common digital asset, full of communications, photos, and memories – many of which we consider more valuable than our simple possessions. And for the most part, people have no idea how those accounts are dealt with after we pass on.
Many of the largest email/storage/social media providers have established policies for this eventuality and I’ve detailed some of them below. This information is current as of August 1, 2017 and should be checked on the services’ sites before making plans regarding these assets.
Gmail/Google: One of Google’s little known features is called “Inactive Account Manager” which grants access to your account to someone that you designate in the event that your account has been inactive for a certain period of time. You get to choose what information they get from Gmail, Drive, Photos, etc. (or if the account should just be deleted) and can customize an email to that person explaining what you want done with the data. If you do not set up the Inactive Account Manager there is a multi-step process that, ultimately, may involve an order from a U.S. based court (as Gmail is located in the US, along with all of the other providers here) but certainly no easy path to accessing that information.
Facebook: Similar to Google, Facebook has a “Legacy Contact” feature where, on proof of death, you can designate another Facebook user to be allowed to either close your account or access a download of the things that you’ve shared within the network. It can be accessed through the general settings link on your profile.
Dropbox: Dropbox is likely the easiest service to access as they have clear procedures for accessing an account. They require that you provide your ID along with, for Manitoba purposes, a grant of probate of a will that specifically grants access to the account to the executor. Interestingly, unlike Google, they do not specify a U.S. court, though they do indicate that even with all documentation they cannot guarantee that they will be able to provide access.
Hotmail/Outlook: Microsoft’s process is more opaque. They will not grant access to the account, nor to any other Microsoft services (like OneDrive) but after a review may be able to provide “contents of a personal email account.” It requires a valid “court order” (which would presumably include a grant of probate) from the “requesting party’s jurisdiction” (such as Manitoba) and as with Dropbox it appears to require specific granting of the information in the will that is probated.
Yahoo Mail and iCloud: Both Yahoo (which also owns the photo site Flickr) and iCloud (which is the umbrella terms for everything Apple related) spell out their policies in their terms of service quite explicitly: all email and storage content, along with purchased apps and music are non-transferable and cannot be released to anyone as a privacy measure. Fortunately, for Apple users, the best way around that is to enable “Family Sharing” which gives people you designate access to your photos and purchases, if nothing else. For their part, Yahoo allows someone to at least close a loved one’s account with sufficient proof of death.
If you are named as someone’s executor and are going to attempt to use procedures like these to access someone’s account after they have passed, it is important to notify the services quickly as, usually, a period of inactivity will lead to a closing and deleting of the account and everything in it.
Ultimately, the easiest, and most sure-fire way to grant access to these accounts after you have passed is to write down the passwords and leave them with your will. It is important to note that, technically, sharing your passwords, even with your executor, is a violation of some website/service’s Terms Of Service, and that there are also risks to writing down passwords and keeping them unsecured. I would suggest that each user has to balance those risks for themselves. More to the point, one of the larger issues here is that it is often not practical to keep passwords written down as passwords, and even accounts, change over time, but if you want to be able to grant your loved ones access to your accounts, it is, in most cases, necessary.
Gerrit Theule is a partner at Wolseley Law LLP and a member of the Manitoba Bar Association’s Wills and Estates Section executive. The information presented in this article is not to be considered legal advice nor fit for any particular purpose. You should consult a lawyer with any questions specific to your situation.
by Gerrit Theule and Tim Brown
- Originally published in the Wolseley Leaf in January 2017
With the close of 2016 and the arrival of 2017 a lot of us may be thinking about New Year’s resolutions to commit to. New Year’s resolutions are too often the things that we know that we should do but for whatever reason, we haven’t gotten around to actually doing. They are the adult version of the “green vegetables” of our childhood, only now, many of us need to be less concerned with getting dessert and more with our own wellbeing and that of those around us. This year, there is no better candidate for a New Year’s resolution you can achieve than to write a will, especially ( but not only!) if 2016 saw you married, divorced, having kids, or saw the passing of a close relative.
Now, I know what you’re going to say, because I hear it almost every day: “I know that I really should have one but…” Often the reasons are varied but they often boil down to two factors: concern about cost, and not wanting to talk about “it”.
The cost factor is a simple one: just ask. Wills can range in cost, usually in relation to how complex the estate and will instructions are, but basic wills can be very affordable, especially given how much money and confusion they can save your loved ones. Many lawyers place prices for simple wills on their websites and most are happy to discuss their fees upfront with people who ask. In the end, a little bit of money spent on a will can save even what would appear to be the easiest estate a significant amount of money in additional fees. Without a will, a number of forms and procedures may be required to show the courts even basic information such as who should be the one to administer your estate, to say nothing of how your estate should be divided, what should happen to your family business, or where any minor children or even pets should live. If you don’t make a decision, the law will decide for you. The resulting additional (and avoidable) costs from gathering and presenting information for the courts all too often far outweigh the cost of making preparations ahead of time. Most importantly, it often doesn’t lead to a result that you’d be happy with.
Talking about “it” is the tougher issue to address, but like so many other New Year’s resolution subjects, not talking about it won’t make it go away. If you want a say in what happens to your minor children, possessions, and money, now is the time to have your say. More than that though, although it may not feel like it, making a will is one of the kindest things that you can do for those close to you. Knowing the “who” and the “what” when you pass away lessens the possibility of confusion and disagreement leading to painful and costly fighting amongst family members.
Certainly 2016 saw more than its fair share of high-profile celebrity passings, but what is more interesting is the news about them that we didn’t see. Even with the media’s constant focus on celebrities, stars with estate values in the tens or hundreds of millions passed away this year with hardly a hint of the kind of family discord that many of us think of when we think of the death of millionaires. The notable exception was Prince who famously passed away last year without a will, leaving his family and estate in utter confusion. The rest, we can assume, passed having made plans for their loved ones to follow, meaning that those closest to them can concentrate on what is really important: remembering their loved one.
Making a will as a New Year’s resolution this year lets you do the same thing for your own friends and family. There is no wondering about what you would have wanted, no agonizing about making sure that they are doing what they should be doing, and no fighting. Yes, like vegetables or the gym, it’s something that you may not really want to do, but in the end it’s good for you and, more importantly, good for those you love. You’ll be happy that you did.
Gerrit Theule and Tim Brown are lawyers and the owners of Wolseley Law LLP