In today’s digital age, our daily lives are increasingly becoming more and more virtual. From banking and entertainment to shopping and even drafting Wills, many activities can now be completed entirely from the comfort of our own homes. While there is debate over whether this shift is beneficial or whether it is responsible for an increasingly polarized society, one undeniable outcome is the growth in digital assets we each own. As these assets multiply, it becomes more crucial than ever to include them in estate planning, just as we would with physical assets like houses or cars. Failing to do so can result in unexpected costs, fraud, and even outright litigation when it comes to the administration of an estate.

The term “digital asset” can refer to a broad selection of properties. A digital asset can be defined as any digital item with value, ownership, and discoverability that can be stored electronically. A key distinction regarding these types of assets is the difference between a digital asset and a digital device. For example, a laptop or computer may clearly belong to an estate, but access to the accounts and software contained therein could be restricted by privacy laws or company policies. This distinction partly explains why digital assets are often overlooked during traditional estate planning. Some key digital assets to consider include:

• Online banking and investing accounts
• Cryptocurrency wallets
• Online gambling accounts
• Social media accounts
• Email accounts
• Software
• Digital photos, videos, and cloud storage

While some of these may seem obvious to include in one’s Will, such as an online banking account, other types of assets, like social media accounts, are often forgotten. When a Will is silent on the specific intention of the testator/testatrix regarding these types of assets, then they are often included as part of the residue of the estate or otherwise would be governed by the laws of intestacy. However, due to the unique nature of these assets, any ambiguity regarding them could cause problems for executors.

The Legal Framework Governing Digital Assets

Unfortunately, the rate at which technology is evolving considerably outpaces the speed of our legislative process and as a result, our statutes are not always able to keep pace with emerging issues. As such, there exists some legal grey area regarding the transfer of digital assets that can potentially result in delays and unexpected costs for an estate trustee should these digital assets not be adequately accounted for in estate planning.

There is currently no comprehensive legislation in Canada that specifically governs and addresses access to the digital assets of a deceased person. Therefore, the current estate administration legislation must be read alongside privacy legislation to understand the roles and requirements that go along with digital assets in estates law.

The Estate Administration Act^[1] imparts onto executors’ broad authority to manage and control a deceased person’s property. This in theory imparts them control over all digital assets as well, although this is not always entirely clear. For example, it is not entirely clear whether social media and email accounts are even considered to be “property” in the traditional sense. Some recent case law suggests that court treat these accounts as assets subject to contractual rights, licensing, or possessory interests.^[2] However, courts have also noted the lack of clear ownership or understanding as to when a personal account becomes the property of an employer, especially when accounts are used both personally and for business purposes.^[3] The unclear status of these types of accounts could potentially provide some ambiguity with respect to how they are dealt with by an executor should they not be sufficiently considered in the Will.

Another potential legal ambiguity that can arise out of these types of digital assets lies in the tension between estate law and digital platforms’ own terms of service agreements. Many social media platforms have their own unique procedures for dealing with accounts of deceased users. However, most terms of service agreements prohibit third parties from accessing accounts, and this could result in significant delays for even executors who would have legal authority to access these. If not planned for, it could prove to be difficult and time consuming to gain access to these accounts that could ultimately require specific proof including a death certificate, proof of executor status, and even court orders in order to access these accounts. Even if court direction is warranted, jurisdictional concerns can arise, especially when dealing with companies like Google or Meta, whose main office are in foreign countries. During these potentially significant delays in access, the accounts may sit online unattended, leaving them vulnerable to identity theft and fraud.

From a privacy and access perspective, despite federal privacy legislation such as the Personal Information Protection and Electronic Documents Act (PIPEDA),^[4] courts may grant personal representatives access to a deceased’s social media records if necessary for determining the deceased’s circumstances at the time of death. Though I will pause to note that the digital privacy rights protected under PIPEDA do not generally extend to deceased persons and their estates. This is why it is all the more pressing to ensure that these accounts are adequately planned for during the estate drafting period, as their privacy rights are largely unprotected.

Cryptocurrencies also bring along with them a whole slew of potential legal issues and ambiguities should they not be adequately planned for. While Canadian courts have formally recognized cryptocurrency as digital assets that can be subject to preservation orders and Mareva injunctions,^[5] they present a number of issues in the context of estates law. One such issue lies in the fact that holdings of cryptocurrencies often present difficulties in terms of tracing, recovering, and establishing control over them. As such, it can often be difficult to track down and access these accounts. Moreover, the constant flux and instability innate to the crypto market can also make valuations of estates difficult to determine, which could have significant impacts on litigation decisions.

Best Practices

Despite the potential problems that digital assets could impose in an estate administration, there are a number of steps that can be taken to ensure that these issues don’t manifest themselves:

• Create an inventory of your digital assets including online bank accounts, cryptocurrency wallets, social media accounts, and online subscriptions;
• Document access information for each digital asset in a secure place like a password manager;
• Include specific instructions in your Will regarding the handling, access, and distribution of each asset, clearly designating beneficiaries in order to avoid any uncertainty and ambiguity;
• Regularly backup important digital assets to ensure that they are not lost and can be easily accessed by your beneficiaries.

Final Thoughts

Technology is constantly changing, and while the laws governing technology change along with it, legislation is not always able to keep up. Identifying potential ambiguities or problems with digital assets ahead of time is paramount to ensuring that an estate is dealt with expeditiously and frictionlessly. Any uncertainty at all in an estate plan can lead to lengthy and costly litigation so getting ahead of the problem can save you and your loved ones the time, cost, and headache.

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[1] Estates Administration Act, R.S.O. 1990, c. E.22

[2] Jerger et al. v. Kaloti et al, 2023 CarswellOnt 12083; 2023 ONSC 4544

[3] Silvercore Advanced Training Systems Inc. v. Beer, 2025 CarswellBC 873; 2025 BCSC 538

[4] Personal Information Protection and Electronic Documents Act, SC 2000, c 5

[5] Li et al. v. Barber et. al., 2022 CarswellOnt 2019; 2022 ONSC 1176