The number and value of digital assets held by individuals is increasing over time.
A digital asset may be defined as anything that is stored in a binary format or more simply an electronic record. Digital assets may include online assets with financial value such as Pay Pal accounts, virtual bank accounts, online gaming accounts and so on. Digital assets may also include items with sentimental value or personal value such as photos stored in cloud accounts, Facebook accounts, email accounts such as Google and other social networking accounts.
When a person dies or becomes incapacitated, a fiduciary such as a personal representative, guardian, attorney or trustee needs access to these electronic records in order to properly administer the property of the deceased or incapacitated person. Few holders of digital assets and accounts consider the fate of their online presences when they are no longer living or in the event that they are no longer able to manage their assets.
At present, the enabling instruments, as well as the law, do not deal adequately with how fiduciaries may gain access to these digital assets. The right of fiduciaries to deal with digital assets is not clear to everyone in the digital world; nor is the duty of Internet Service Providers (custodians of the digital assets) to provide access to these assets to fiduciaries. This is becoming more important as we experience the greying of our population as well as the increase in digital assets held by all individuals in our society. This is a worldwide phenomenon.
About the Working Group
While there are individuals who have raised awareness of the concern in this area and suggest provisions to be included in enabling instruments, there is no clear direction or assistance to trust and estate practitioners on how to respond to this situation. Generally, Internet Service Providers have shown little interest in responding to the concerns.
The Digital Assets Working Group was therefore established in 2013 as an offshoot of the Mental Capacity Special Interest Group to address the emerging issues for STEP practitioners in this area. The group has a working group which includes practitioners from multiple jurisdictions. The goals and objectives of the group are as follows: