Law Times

PAGE 14 Lawyers advised to brush up on digital assets Move to keeping information online creates new issues for estates FOCUS BY MICHAEL McKIERNAN Law Times W hen lawyer Erin Cowl- ing' s grandmother died last year, one of the first things the Cowling's father, did was go to executor of the estate, her house. As soon as he walked in the door of the house, he found a stack of mail that contained a hydro bill, an insurance bill, and a couple of bank state- ments. Upstairs, he discovered a collection of love letters be- tween his parents and boxes of family photos neatly prepared for each of his siblings. "Very quickly, my father NEW EDITION WEALTH PLANNING STRATEGIES FOR CANADIANS 2013 ChriStine VAn CAUwenberghe Your clients are at different stages in their lives and they rely on you to give them the right financial and tax advice. How can you be ready with the right answers for the wide variety of life situations that you will encounter? 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They were there for a talk on digital assets put on by the Society of Trust and Es- tate Practitioners' Canadian chapter. But, Cowling went on, if she knew where everything was and knew everything he had to do to fulfil Nana' s wishes," " count statements are paperless and delivered in an electronic format only to a multitude of e- mail addresses. "You will find very few new books in my house," said Cowl- ing. "My books are now found on my Kobo e-reader. You will find some photo albums, but the majority of my family pho- tos and videos are stored on my password-protected computer and backed up in the cloud. You will not find a single love letter between myself and my hus- band. "I'm not saying we're not a couple, but where romantic those messages are is in our e- mails, our Facebook messages, our BlackBerry Messenger messages, our texts." According to Cowling, es- draſting legislation dealing with digital assets, but a uniform approach has yet to develop. For example, Cowling pointed to states such as Idaho and Ne- braska where estate administra- tors have the power to access, control, and terminate the digi- tal accounts of the deceased. Other states like Indiana and Some U.S. states have begun were "to drop dead right now, it would be a very different story. All of her bills and bank ac- Connecticut have endorsed a more limited role for executors that allows them access in order to view and copy the contents of the accounts but not make changes such as closing them or deleting information. In Canada, the absence of both legislation and case law means estate executors can be taking a step into the unknown. Cowling said testators can make their jobs easier by mak- ing their intentions known at the outset. "The main thing you can do to protect your digital assets and accounts is to conduct digi- tal audits before a will is draſted and periodically aſterwards," she said." "Once your digital audit is OctOber 22, 2012 • Law times complete, you can leave a de- tailed list of accounts and pass- words with clear instructions on your wishes for your digital life aſter death." Anita Fineberg, a privacy tates lawyers have been slow to acknowledge the shiſt in the way people organize their lives online. "When I broach this topic ADVANCE YOUR PERSONAL INJURY CASE WITH CONFIDENCE NEW PUBLICATION SPRAINS, STRAINS AND AUTOMOBILES: A MEDICALLY ILLUSTRATED GUIDE TO COMMONLY LITIGATED INJURIES LISA ZARETSKY AND BONNIE KOREEN WITH ILLUSTRATIONS AND DESIGN BY JOHN HARVEY Sprains, Strains and Automobiles: A Medically Illustrated Guide to Commonly Litigated Injuries provides you with an understanding of the nature of an injury through a relevant personal injury focused framework. ORDER # 983712 $95 Softcover approx. 82 pages November 2011 978-0-7798-3712-0 Shipping and handling are extra. 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It' s all very in- going to change anything.' lawyer and former counsel at the Office of the Information and Privacy Commissioner of Ontario, told the audience that privacy issues can create even more headaches for executors. She said it' ception that a person's expecta- s a common miscon- tions of privacy die with them and that an executor can simply step into the shoes of the de- ceased. According to Fineberg, ex- s not really changing world. We need to be putting just as much thought into our digital assets and ac- counts as we do into our physi- cal and financial assets when planning our estate. "Well, as we know, this is a encourage testators to think about who, get access to their digital ac- counts and to what extent. "Do you want your children Cowling said lawyers should if anyone, should " to have access to your personal e-mail account aſter you've died? Do you want them to see the e-mails you wrote about them complaining about their marks or their boyfriend or girl- friend? Who will have access to your online poker account? Do you want your family to know that you have an online poker account?" she said, noting those types of questions "are just the tip of the iceberg. " www.lawtimesnews.com ecutors shouldn't assume they have protection from a claim for breach of privacy simply because they hold the user in- formation for an account be- longing to the testator. She said communications and informa- tion contained in the digital ac- counts could affect parties such as the business partners, com- petitors, and employees of the deceased. "Very oſten, what we find is that privacy issues are used as a cloak to advance another claim," said Finberg. "Without proactive manage- when alive dissipate upon death such that executors should have a right to this. I don't know and I don't think that that is a fair assumption. I think if anything, the assumption should be in the other direction: that with- out a specific direction to the contrary, the individual wanted to maintain those controls and keep certain information lim- ited." ment of this, one is potentially making assumptions that an individual' s controls and desires LT

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