More Canadians are likely faced with the task of deciding what to do with their digital estate once they’re gone, whether that means protecting their cryptocurrency or leaving their social media accounts in someone else’s hands.
Many big tech companies, such as Facebook, Twitter and Apple, have ways of allowing loved ones to remove or memorialize a person’s account once they’ve died.
But when it comes to financial assets in the digital space, like cryptocurrency, ensuring someone can access it after the owner is dead is crucial before it’s too late, one estate and trust law expert says.
“People don’t think about it when they open it, but cryptocurrency is a huge issue,” Jordan Atin, senior associate counsel at Hull & Hull LLP in Toronto and an adjunct professor at Osgoode Hall Law School at York University, told CTV News.ca in a phone interview on Monday. “The money is gone if they can’t get at it.”
Individuals use their private key, like a password, to access their cryptocurrency such as Bitcoin or Ethereum. The decentralized nature of cryptocurrencies makes tracing their ownership or conducting an audit virtually impossible without the private key.
Entrusting someone with a password is one way, and perhaps one of the only ways, to ensure these assets are not lost forever, although even this raises security concerns, Atin says.
“We’re early on in this and despite a lot of thinking on the topic by lawyers and privacy people and all of that stuff, we don’t still have a solution,” he said.
Some cryptocurrency platforms allow people who inherit or become the owner of a deceased family member’s account to access it.
Coinbase, for example, will ask those requesting access to their loved one’s account for a death certificate, last will and testament, and a valid government-issued photo ID of the requestor.
The Canadian-based website Bitbuy also has a similar policy.
Another option, for tax purposes, is for a cryptocurrency holder to create a second will dictating whom they would like to transfer their crypto assets to in the event of their death.
If a beneficiary tries to take money out of a bank after the account holder dies, for example, a government-validated will is needed in order to transfer those assets and then a probate tax is charged.
Since cryptocurrency doesn’t require a government-validated will — all you need is the account holder’s key — a separate will can be drawn up just for that asset, which doesn’t require a probate tax payment.
Known as the “multiple wills” strategy, Atin says this is often used for assets like shares in a private company.
Probate, or inheritance, tax rates vary across Canada. In Ontario, for example, it is zero for the first $50,000 of an estate and 1.5 per cent after that.
One way users can protect their private keys is to get a crypto “wallet,” which can be “hot” or “cold.”
A hot wallet is connected to the internet, meaning private keys are stored on an app and kept online, making them more convenient to use but also vulnerable to hacking and online attacks.
On the other hand, a cold wallet is entirely offline and private keys are written down or printed, or stored on a piece of hardware like a USB drive. While not susceptible to online attacks, cold wallets do run the risk of being lost or destroyed.
When it comes to a person’s online accounts, users are reminded that social media is really a contractual agreement with a third party, and accessing a loved one’s information may require a court order.
In 2017, a mother in Ottawa had to get a judge’s order to access her late son’s social media accounts after his mysterious death.
She said she contacted Google, Facebook and her son’s cellphone provider, but they wouldn’t grant her access without a court order.
“You don’t really own them [social media accounts] in essence,” Atin said. “You’re allowed to use their platform and those are through their terms of service.”
There is also the question of whether a user may even want the contents of their social media or email made accessible after they’ve died.
A person could draft up a digital assets clause in their will that gives an executor authority to handle their social media, Atin says.
But wills are also public records, he adds, meaning a person may not want to put their passwords directly into one.
“So this is an area that I’m sure is going to evolve … but we’re going to have to evolve quicker than that when it comes to digital assets I’m afraid,” Atin said.
Ultimately, whether it’s social media or crypto, if the plan after you’ve died is to transfer that ownership to someone else, make sure that person has the ability to get it.
“That’s a general analysis of the problem, and that goes for any kind of cryptocurrency or any kind of social media account or digital asset,” Atin said.
“Know what’s required for every particular asset that you own and make sure that the person who’s going to claim it when you’re dead has access to that information.”
Here are the policies currently in place at big tech:
Apple notes that devices locked with a passcode are encrypted, meaning Apple can’t help remove the lock without erasing a device’s contents.
A person can request access to a deceased person’s Apple ID and data using a court order that names them as the rightful inheritor of their loved one’s personal information.
In some countries, including France, Germany, Japan, Australia and New Zealand, other documentation can be used instead of a court order.
Otherwise, a person can still request that their late loved one’s account be deleted, which requires the requestor’s Apple ID, as well as “required legal documentation for your country or region.”
As an alternative, Apple encourages users to define in their will what personal information stored on their Apple devices and in the iCloud can be inherited.
Google says the best way for users to let the company know who should have access to their personal information once they have died, and whether their account should be deleted, is through the Inactive Account Manager.
This includes the ability to create trusted contacts, who will be able to have access to certain data from a user’s account if it has been inactive for a certain period of time.
A request can also be made to close a deceased person’s account, and in some cases share information with a loved one.
However, Google says it “cannot provide passwords or other login details.”
Microsoft says, for privacy and other legal reasons, it can’t provide any information about an account such as Outlook, OneDrive or other services, when someone has died.
A person who knows an account’s login can close it on their own.
If kept open, an account will close automatically after two years of inactivity. An account can be reopened within 60 days after it’s closed.
Outlook and OneDrive accounts are frozen after one year and any messages and files stored on them are deleted not long after.
Those who need access to an account are advised to seek legal advice and may need a court order.
Subscriptions, on the other hand, are fairly easy to deal with after a person has died, Atin says.
Often, it just requires writing to the subscription service to inform them of the subscriber’s death or even just cancelling the subscriber’s credit card.
FACEBOOK AND INSTAGRAM
Facebook’s policy is to memorialize an account after a user has died, once notified by a family member or close friend.
This also prevents anyone from logging into it, the company says.
Similar to Apple, a user can create a legacy contact who will look after a person’s profile if it has been memorialized.
That legacy contact will have the ability to write a final message on a deceased user’s profile, view posts, decide who can see and post tributes, and update the profile picture and cover photo. A legacy contact can also request that an account be removed.
Beyond that, requesting the removal of an account will require documentation, such as a death certificate or some proof that a loved one has died.
Instagram, which Facebook owns, has a similar policy, with users able to request that an account be memorialized or removed.
Requests can be made to remove a deceased user’s account. Doing so requires details such as the requester’s ID and the deceased’s death certificate.
Twitter, however, is unable to provide account access, regardless of a person’s relationship to the user.
If a user is incapacitated, due to a medical or other reasons, a person other than the user can make a request to deactivate an account. This would require a power of attorney, among other information, authorizing a person to act on the account holder’s behalf.