Introduction

I recently completed my first Spartan Race.  At 56, you won’t be surprised to hear I was a bit sore afterwards and needed to visit my physiotherapist’s office.  As I had not met with this physiotherapist before, I needed to complete the form about myhealth history and include the names of my emergency contacts.  

Whenever you need to complete the emergency contact section, you know who those people are, whether your spouse, adult child, your mom or dad, or maybe a sibling or close friend.

In the area of estate planning, you also name your “emergency contacts” – the people who may make financial decisions (called your Attorney) or health decisions (called your Agent) or administer your estate (your Executor or Personal Representative).

There is one more contact you should be considering including for estate planning for digital assets – your legacy contact.

Your Apple account and Facebook App allow you to add a person as your legacy contact.  The links to how you do these are included here:

https://support.apple.com/en-ca/102631

https://www.facebook.com/help/1568013990080948/

By creating a Legacy contact, if you die, the person named can have access to your account, which would allow them to obtain information or pictures from your account and memorialize your account (meaning people can still view your information, but new information cannot be added).

Not all apps include the option of Legacy contacts.  Instagram, Linked In, Twitter/X, and TikTok do not. While some apps may create a similar setup to Apple or Facebook in the future, others may not.  At the present time, Twitter/X will only deactivate an account and not allow access by a Personal Representative.

Lawyers also try to address digital assets in Wills and Enduring Powers of Attorneys by including a digital assets clause.  The wording my office uses is robust.

The wording authorizes the Attorney and Personal Representative full access to the Apps, programs and devices as the owner of the device or licensee of the App or program had.

I have only had a few recent instances where I needed to utilize the digital assets clause in a Will.  The reason it is rare is in many cases elderly people may not have digital assets – because they did not adopt the technology or closed down their accounts during their lifetime.

When a lawyer applies for Probate, and there are digital assets, the Court in granting probate will include specific wording that authorizes:

“any digital asset provider with whom the Deceased had dealings, to allow the Personal Representative to access and deal with the digital assets of the Deceased in as full a manner as the Deceased could have during his lifetime”

The concern I am experiencing on a couple of recent estates is Apple does not accept this wording in the Grant of Probate.  Apple requires an Order containing specific wording that says the following things:

• The Requestor’s name and Deceased’s Apple Account ID and name of the deceased person.
• ​The name of the next of kin/Personal Representative who is requesting access to the decedent’s account.
• That the decedent was the user of all accounts associated with the Apple Account.
• That the requestor is the decedent’s legal personal representative, agent, or heir, whose authorization constitutes “lawful consent.”
• That Apple is ordered by the court to assist in the provision of access to the decedent’s information from the deceased person’s accounts. The court order should be addressed to the relevant Apple entity.

This is the current wording Apple requires.  While this exact wording could be included in a Will, Apple has used different wording in the past and may change the required wording in the future.

What this means for practical purposes is in order for the Estate to be able to get access to the Apple content of the deceased (ie: pictures), additional legal steps may be required which may include bringing an additional court application to obtain an order containing the specific wording.

While I and fellow estate lawyers will work with the Courts to find solutions to address wording concerns, whether with Apple or other digital asset companies, the legacy contact route appears to be the simpler solution to provide your Personal Representative with the ability to handle your digital asset accounts where this option exists.

Now that you are aware of this, the time is right to create your legacy contacts.  Your children, who will likely be more technologically connected than you, should also create their legacy contacts (if they haven’t already beaten you to the punch).  

As the digital world changes fast, it is important to review your online accounts periodically as well to see if they add the ability to create a legacy contact orconsider periodic downloading information/pictures to save on a portable device (hard drive).