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Today’s Executor is a Digital Executor

Today’s Executor is a Digital Executor

The estates and trusts world has taken notice of the importance of digital assets—there is no question about that. Now that we know that an individual’s digital assets are something that advisors and clients alike need to consider for every estate planning matter, the estates and trusts industry as a whole needs to start to thinking about how to best plan for those digital assets from a legal, financial and technical perspective.

I recently read Sharon Hartung’s novel Digital Executor: Unraveling the New Path for Estate Planning, which is a deep exploration of these considerations. Sharon is an engineer who spent many years working for IBM, and I was drawn to her work through her first novel Your Digital Undertaker: Exploring Death in the Digital Age in Canada, which is all about taking an information technology-based project management approach to estate planning. While Your Digital Undertaker is a great book for anyone who is unfamiliar with estate planning, Digital Executor is more geared towards advisors who have only just begun to interact with the issues necessitated by digital assets.

The crux of the book is the meaning of the term “digital executor” relative to the digital assets of the testator’s estate. By way of background, a will can delegate different executors for different types of assets: for example, a literary executor may be appointed to deal with copyrights if the deceased was an author, or an art executor may be appointed to manage the testator’s artwork (i.e. if the estate contains a large quantity of artwork). The idea is that these distinct executors have specific skills or knowledge that will assist them in their specialized roles, and are appointed in addition to the “primary” executor who deals with the remainder of the estate assets.

Naturally, one might think that a “digital executor” should thus have exclusive domain over the testator’s digital assets. As the novel points out, there are numerous problems with this idea. For instance, consider that many people’s digital and non-digital lives are very much intertwined. This not only means, for example, that people tend to “do everything” from their phones (such as sending messages, listening to music and even tracking their health, among many other things), but also that their physical assets are very much connected to their digital assets (for instance, through banking or investing apps). This is also amplified by the fact that with each passing year, and each successive generation of people, people’s digital footprints are getting larger and larger, which in turn magnifies the role that digital assets play in one’s overall estate planning.

A simple but effective illustration of these principles is the idea of the home office. In the 20th century, when a testator died, the executor would have been charged with the task of “going through their papers” in a home or work office and discovering information about the testator’s assets, debts and liabilities, among other things. While such a discovery process may still be relevant for some individuals today, the reality is that, now in the 21st century, our e-mail accounts are the primary means of discovering this information. Indeed, email accounts likely contain not only information about digital assets, but also about relationships with financial services (i.e. banks, insurance institutions) and outstanding billings depending on if the client was a billing professional, among many other things.

As Digital Executor points out, the ability to access a testator’s email accounts isn’t just convenient; it’s essential. Therefore, email accounts of the testator are something that an executor would need to be able to access and manage, and not something that should be limited to a digital executor. That’s exactly the argument that Digital Executor is making: the term “digital executor” is an invented one, as today’s executor is a digital executor, and as such will need to be equipped to handle managing the testator’s digital footprint and its implications on the testator’s overall estate planning.

Of course, as the industry has begun to learn, not all digital assets are the same, and a lack of pre-planning can lead to being locked out of digital assets that could affect the overall ascertainable value of the estate (like email) or may have a specific value (like cryptocurrency). Pre-planning is indeed extremely important: even something like neglecting to cancel a testator’s monthly or yearly subscriptions to certain digital services can unnecessarily cost the estate hundreds of dollars per year.

Digital Executor: Unraveling the New Path for Estate Planning is a great guide for advisors to help them learn both the digital assets and overall estate planning questions they should be asking their clients. It’s no secret in any estate planning matter, communication is key, and the increasing relevance of this topic will only continue to beget an increasing need for communication.

About Demetre Vasilounis
Demetre Vasilounis is an associate in the Trusts, Wills, Estates and Charities group at Fasken. He has a broad estates and trusts practice with an emphasis on the evolving relationship between estates law and technology. Demetre has developed and implemented cohesive estate plans for clients involving a wide range of different family and corporate structures. He has also advised on probate planning, disability planning, charitable gifting, asset protection strategies, cross-border estates and tax issues, personal privacy, and family law matters. Demetre enjoys learning and writing about unique, unexplored issues in estates law, particularly with respect to digital assets, privacy, artificial intelligence and intellectual property.

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