Tag Archives: digital assets will

New year, new will.

Who needs a will? Anyone with kids, with assets, who is over 19 …. Pretty much all of you out there!

Who has a will?  …… radio silence …

Even though I am a lawyer and practice in the area of wills and estates, I didn’t have a will for the longest time (bad lawyer!!).  I thought about this often and realized that while I can chat about estate planning and the importance of appointing a guardian for your kids and pets, when it actually came to facing my own immortality … I choked!

I do have a will now, but the process got me thinking about how many people speak to me and say “oh yes, I need a will”, but it always get put to the end of “the list”.  Which is ironic because “the list” is usually made up of items that increase our wealth, look after our children and generally look after all of the things we need to protect both in life and death.  So having a will should be at the top of that list!!

A couple of interesting points about wills for you to mull over:

1.       British Columbia does not recognize holograph wills (except in very, very specific cases – and if you are not on the front lines in Afghanistan, you don’t fit into the circumstances!) so writing on a piece of paper that “I leave all my worldly goods to Skip the dog” just doesn’t cut it in British Columbia.

2.       If you use beneficiary designations on life insurance / RRSPs and other investment products, they do not go through your estate at your death and you do not pay probate fees on the value of these items.

3.       A will is automatically revoked upon marriage.

4.       Divorce revokes only the parts of your will that provides a gift or benefit to your ex.  Now many of us are happy of this by the time the divorce comes through … but if there is no one who is to get those gifts / benefits in place of your ex … where do they go?

5.       In British Columbia we have a statute called the “Wills Variation Act”.  It is a very old statute and the bane of many, however it creates a lot of work for lawyers.  The basic premise is that if you do not provide for a person to whom you owe an obligation (read: children and spouses – including estranged but not divorced spouses), those people can bring an action in Supreme Court for a portion of your estate.  It’s a pain and it’s specific to British Columbia, but if you are considering leaving out a child or in the process of getting divorced – see a lawyer to discuss how to protect your estate.

6.       If you make a direct gift to a minor child in your will (as opposed to creating a trust for the minor), the Public Guardian and Trustee will step in and manage that trust until the child turns of age.  The Public Guardian and Trustee is a government agency that is overworked and understaffed – your minor child’s trust will be managed at a cost and will be invested in accordance with the very specific rules set down by the PGT.  There is no discretion, there is limited flexibility and someone will be dealing with the government every time they want to use some of that gift.

7.       Finally, if you leave money to a disabled adult or child directly (as opposed to setting up a disability trust), you could actually cause them to lose some or all of their disability income.

So now that you are thinking of this, don’t put it at the end of the list – call us and set up an appointment to get this process going!!

Do You Have a Plan for Your Digital Assets When You Die?

If you were to die tomorrow, your family would likely go through your possessions in an effort to organize and distribute them to various family members or friends. Collecting your physical assets would be a relatively straightforward, albeit daunting, task; they would probably start in one room and work their way through to other areas of the house. But what would they—or could they—do about your digital assets?

So much of what we do now takes place online. Between e-books, iTunes music libraries, Bitcoin accounts, and Dropbox folders containing decades’ worth of photos, videos, and documents (not to mention social media accounts such as Facebook, Twitter, and Instagram), many of us have probably accumulated a sizeable online presence or “digital estate”.

In fact, a 2011 global survey conducted by computer security software company McAfee revealed that Canadian users place an average value of $47,000 (USD) on the “digital assets” they own across multiple digital devices. With the exponential proliferation of technology and social media in the last few years, I suspect this number would be significantly higher today.

Now imagine that your family could not legally access any of those digital assets.

The Law of the Land

Unfortunately, there is no legislation in Canada that allows family members or even the executor of an estate to gain access to digital assets on behalf of a deceased person. The law in this area simply has not caught up to the state of modern technology and the blurred lines between our physical and online worlds.

This means the policies of individual service providers will determine how families can access their deceased loved ones’ accounts (if they can access them at all). Keep in mind that all of the online accounts we use are governed by the Terms of Use of that particular service provider. We don’t own our online accounts; we simply have a license to use them. So, without uniform legislation on right of access upon death, your family members are left to the mercy of the service providers, which all have different polices on what happens to your account when you die.

So What Can You Do?

Continue reading here…… Story via Ava Aslani, Essentia Law Kelowna