Digital Remains and the Future of Estates Law in British Columbia

Today’s clients typically leave more than just a house, some furniture, and a tidy list of bank accounts when they pass. And the key to a safety deposit box might instead be a locked iPhone that controls two-factor authentication for a plethora of “digital remains.” The email accounts probably hold billing records, their iCloud storage, other business documents… and what instructions have they left their heirs regarding their cryptocurrency wallets or monetized social media accounts?

Executors may have legal authority to administer the estate but no practical ability to access the digital life that makes that administration possible. There is a growing corpus of literature on this trend and the underlying tension between privacy interests of the deceased, various corporate interests (and terms of service) of the mostly big tech custodians of our digital afterlife, and the emotional, financial, and pragmatic needs of the loved ones left behind.

Legal scholars Michael Birnhack and Tal Morse in their piece on "Digital Remains: Property or Privacy?" (2022) 30:3 Int'l JL & Info Tech 280—an article you can freely access through Courthouse Libraries BC with a remote access account (if you’re a B.C. lawyer)—propose a simple but helpful framework for conceptualizing digital remains via four categories.

Intangible items – where certain digital assets work more clearly like property in the traditional sense. This includes cryptocurrency, domain names, e-books, and even virtual items purchased on online games.

Information about property – the gateway to the estate, albeit not valuable in itself. Email, cloud storage, online banking portals, and smartphones often hold the records that identify assets, liabilities, and recurring payments. The representative needs access to these to perform their fiduciary duties.

Intellectual property – e.g. files with photographs, manuscripts, correspondence, etc.

Personal data – which in life was protected by privacy data laws, but in death may reveal things about the deceased that family and friends did not know.

Meanwhile, it’s worth reading up on how the Uniform Law Conference of Canada’s Uniform Access to Digital Assets by Fiduciaries Act proposes some solutions to the tensions. It defines digital assets broadly and pulls focus on the digital legacy problem through the lens of fiduciaries.

Under this proposed framework, a fiduciary of the deceased account holder is either their personal representative, guardian, attorney, or trustee. The fiduciaries have priority access to electronic records to properly administer estates, subject to the instructions of the account holder.

While few provinces have adopted this legislation (British Columbia has not), the model legislation provides that if a fiduciary’s authority is established, a service provider must give access within a set timeframe, and terms of service limiting access are largely defeatable.

Until there is firm statutory clarity, however, B.C. lawyers must draft, plan, and advise their living clients with this reality in mind.

For estate planning, ideally the clients make timely (and that means inter vivos) use of the tools that many platforms do provide.

The platforms are, after all, the new gatekeepers. Since the mid-2010s, major technology companies have built their own “digital legacy” tools. Apple offers Digital Legacy, Google provides Inactive Account Manager, and Meta allows users to appoint a Legacy Contact. These systems let users designate who may access their data after death, or whether accounts should be deleted.

Scholars such as Samuel Hoy VII Brown have noted that social media profiles of the deceased are expected to outnumber those of the living in coming decades, and he raises this statistic to draw attention to an even more spectral challenge. See “Don't Fear the Reaper? How Generative Artificial Intelligence Is Changing the Landscape of Posthumous Communication Technology”, (2024) 73:5 Am U L Rev 1271. New technologies now make it possible to generate voice clones, chatbots, or avatars trained on a person’s data. These raise new questions about posthumous privacy, identity, and control. And some would say new urgency for law reform.

For now, British Columbia’s law offers little direct guidance beyond the common law interpretation.

Much of the most useful thinking on digital inheritance appears in law-reform reports and academic commentary rather than in reported cases. Several of the sources referenced here, including Birnhack and Morse’s analysis and Brown’s work on posthumous digital identity, are available through HeinOnline, one of the subscription databases provided by Courthouse Libraries BC. Practising lawyers in B.C. can obtain remote access through our website.

And, in a fitting irony, please note that access to our remote subscription service is now possible via your Law Society of BC digital credential and the BC Wallet app on your smartphone.