For that matter, you may be wondering, “what is a digital asset?” Legally speaking, it turns out that is a complicated question.
A digital asset, put simply, is anything that exists in a digital format and comes with a right of ownership or use. This may include things such as computer software, online accounts and digital media, but can also include high-value commodities such as bitcoin and other cryptocurrencies. In today’s technological age, the prevalence of digital assets is only increasing; considered cumulatively, such assets could represent a significant monetary value even for the average person.
While the above definition may seem intuitive, there is as of yet no legally binding definition in many Canadian jurisdictions.
Moreover, digital assets can pose some unique problems for executors trying to administer an estate. For example, when trying to access a testator’s online accounts, a service provider may be hesitant to provide the account password to the executor. Some service providers even limit fiduciary access to digital content in their service agreements. In the absence of legislation mandating fiduciary access to digital assets, these service providers may well be within their rights.
While the Uniform Law Conference of Canada has proposed model legislation to address these issues (see the Uniform Access to Digital Assets by Fiduciary Act), few Canadian jurisdictions have enacted comprehensive legislation regarding fiduciary access to the digital assets of an individual who has passed away.
One province that has enacted such legislation is Saskatchewan. This legislation is the Fiduciaries Access to Digital Information Act, SS 2020, c 6 (“FADIA”).
Section 4 of FADIA provides that the fiduciary of an account holder has the right to access a digital asset of the account holder, and limits the extent to which provisions in service agreements can limit a fiduciary’s access to a digital asset of the account holder.
Section 7 of FADIA provides that a provision in a service agreement is unenforceable against a fiduciary to the extent that the provision limits, contrary to FADIA, a fiduciary’s access to a digital asset.
At present, British Columbia does not have legislation addressing access to digital assets. However, there are steps that you can take to ensure that your assets are protected and your wishes carried out. At Muirhead Law, we would be happy to discuss the full range of options with you.