When it comes time to draft a will, clients are normally very direct in what they want happening to their property when they die.  The sofa may be left to their daughter Sally, the convertible left to uncle Tony, the hockey cards left to nephew Jimmy.  Pretty much any piece of property can be left to pretty much anyone, and for the most part, everyone has a plan in mind.  But in the last decade or so, a new type of property has emerged that is often overlooked in estate planning: digital property.

Digital property, for the most part, is intangible. It can take make many forms, including but not limited to, photographs, music files, e-mails, social networking profiles, enterprise web content such as blogs and reviews, and video footage.  When a person dies, their digital property could live on in cyberspace forever, or on the other hand, could be disposed of when an account gets deleted due to inactivity.

Here are some practical considerations involving your digital property to think about:

Photographs:

Gone are the days when you take several dozen pictures, bring the film in to the developer, and then store the photos in an album or in a box under the stairs.  Nowadays, a computer might hold hundreds upon hundreds of digital photographs, uploaded and transferred within seconds.  Many of these digital files are the only copy of the picture in existence.  Obviously, to preserve memories and family history, it’s important that these photos be dealt with and passed on.  If you maintain a photostream on a website such a Flickr, there is no right of survivorship, meaning the pictures will be disposed of. That is, unless someone takes over the account.

Music files:

Whether you’re a casual downloader or an MP3 maniac, you don’t actually own your digital music files.  When you use a program from purchasing digital music such as iTunes, you agree on the end user agreement that you will be a licensee of the music. That means you’re not actually allowed sell or bequeath the files to someone else. The same goes for digital music files that are stored in a “cloud”.  It’s a pretty common practice for people to pass down their old vinyl or CD collections. While there’s not much that can be done to stop it from happening with digital files too, as a general point of law, there is no property right to the file.

E-mails:

The approach from major e-mail service providers varies from company to company.  For example, Gmail (Google mail) will hand over the account of a deceased, so long as certain information can be provided, such as a death certificate and a copy of a power of attorney. Hotmail will grants access to the account after being provided with the same information required by Gmail.  However, Hotmail will automatically delete the account after a year of inactivity. Yahoo, on the other hand, is much stricter that Gmail and Hotmail.  That’s because it does not have a right of survivorship in its privacy policy. Once Yahoo receives a death certificate, it will close the account and delete the contents.  If you use an email account that isn’t provided by Gmail, Hotmail, or Yahoo, it may be worth spending a few minutes checking out your provider’s privacy policy.

Social networking profiles:

You may or may not be one of the 500 Million people who have an active Facebook account. If you are, then you should know that when you die, your account will be de-activated and converted into a memorial page.  This means that you “friends” can still visit your page, but no one will be able to log into the account in the future.  If you have a Twitter account, it will be removed after given notice with a death certificate. However, if family members submit a formal request, they may be provided with archives of public Tweets from the deceased user. As for Google+, the same policy as provided for with Gmail will apply, giving your heir full access to the account, so long as certain information can be provided, such as a death certificate and a copy of a power of attorney.

Video footage:

Youtube, which is owned by Google, allows heirs to have full access to an account and its content. Once an heir has access to the account, he or she can keep videos public, make them privately accessible, unlist them, or delete them from the site outright.

For the most part, digital estates do not currently receive much attention.  This is likely because the concept is relatively new, and because the generation of people that have online property are not at the stage in their lives where they plan for their death.  However, this is surely going to be an area of estate law that will begin to grow exponentially.

If you have specific plans for what should be done with your digital property when you die, your best option is to appoint a “digital trustee” in your will and leave him or her with specific instructions.  Otherwise, your heirs and trustees will have to sort out your digital property and deal with service providers individually.  This will be time-consuming and potentially very stressful.

Your digital trustee can be left a list of all your accounts, user names, and passwords. This will allow him or her to assume your online identity and deal with your digital property according to your wishes.  If this is something you’re considering, it may be worth sitting down and making a list of all your important accounts, writing out your login and password information, figuring out how you want each account dealt with, and deciding who you want to deal with the accounts.

While this approach may violate the terms of service for various companies, as of yet, courts in Ontario have not dealt with the issue on any substantive basis. Until this happens, the time may be right for you to decide what will happen to your digital property when you die.