Don't Let Your Digital Assets Die With You

Duties of personal representatives with respect to digital assets

Personal representatives (estate executors and administrators) have an overarching fiduciary duty to conduct themselve and the affairs of the estate for the benefit of the beneficiaries. In the context of digital assets, the general duties and obligations of the personal representative include the following:

  1. Identify. Ascertain and list all digital assets of the deceased.
  2. Gain access to PCDA. Secure any PCDA and restrict access. Because the physical property and all the rights to it vest in you as personal representative, you are within your rights to circumvent passwords and security measures if necessary in order to gain access.
  3. Gain access to CADA. Where the deceased has left passwords for CADA, ensure that you can gain access. Where you do not have a username/password for CADA, consider whether there is another way to request the information.
  4. Back Up. Where possible and appropriate, make local backups of assets (whether PCDA or CADA) that may have financial or sentimental value. For example, some online digital photo services provide the option of downloading a backup of all files as one compressed file.
  5. Inventory. List all digital assets located, for the purpose of accounting to beneficiaries.
  6. Digital assets having determinable value. Digital assets having realizable present or future financial value should be secured and their value ascertained for probate and accounting purposes. Determine whether the asset is to be transferred in kind to a beneficiary or if it should be prepared for sale.
  7. Personal and sentimental items. For personal and sentimental digital assets without determinable value, arrange for their transfer to the beneficiaries in accordance with the will or law. If these assets are of a personal nature, they may fall within the “articles” provisions employed in many wills. Articles are typically defined to include “items of personal, domestic and household use or ornament”.
  8. Personal information.  Subject to instructions or wishes for dealing with personal information, the personal representative should protect the privacy of the deceased to the greatest degree possible.
  9. Liabilities. Determine any liabilities relating to digital accounts and pay them together with other estate liabilities.
  10. Close accounts. Attend to the orderly closing of accounts where all useful assets have been retrieved and the account is of no further use.