Property rights vs. contractual rights

To understand digital and their management in the estates context, it is necessary to consider the different categories of legal rights which may be applicable to the assets:

  1. Tangible personal property. Tangible is property that can be physically manipulated and moved. Examples of tangible personal property are computers, mobile and tablet devices, and physical storage media including hard drives, memory sticks and flash cards.
  2. Intangible . This is property in which an owner has rights but that generally does not have a tangible physical manifestation. Intangible includes all manner of digital files and records over which an individual has rights of ownership, including the individual’s electronic documents, emails, and digital photos. It also includes domain names.
  3. Contractual rights. Whereas property rights relate to a particular thing and can theoretically be enforced against everyone in the world, contractual rights are personal and enforceable only by and against the parties to the contract, and only in accordance with its terms. In the context of digital assets, contracts govern rights of access to CADA, and in some cases, govern rights of use for particular files or data.

On death, all of a person’s property, including tangible and intangible personal property, vests in the personal representative of the deceased.Personal contractual rights of the deceased, however, generally do not pass to the personal representative unless the terms of the contract specifically provide for enurement of benefits to personal representatives, or specific legislation applies.


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