Section 142 of the Wills, Estates and Succession Act provides that a personal representative is granted all of the authority over the estate that the deceased person had while alive, subject to the Act and any contrary intention in the will of the deceased person. In many cases, this general power should be sufficient to give the executor all the legal powers they need to deal with digital assets.
Setting out more specific or expansive powers to deal with digital assets may be warranted where (i) the digital assets will be held as part of a trust (since section 142 confers general powers only on personal representatives and not on trustees), or (ii) the client has extensive digital assets and wishes to have specific powers enumerated. Some professionals have recommended that individuals name a “digital executor” in their will, separate from their primary executor, who is given the power to deal with digital assets. In the author’s view, appointing a separate digital executor will rarely, if ever, be advisable.
Unless the powers of the primary executor are carefully limited to exclude digital assets, it is likely that the primary executor will also have authority over digital assets, raising the possibility of conflicts between the primary executor and the digital executor. If a client wishes someone other than their executor to manage some of their digital assets, it will usually be preferable to authorize the executor to engage that person to assist in dealing with digital assets. Having the third party engaged by the executor in this manner makes it clear that the executor retains authority over and responsibility for the management of digital assets.