Estate Planning for your Digital Assets

If you were to die today, would there be anyone else with your Instagram password? Could anyone access your important files Google Drive? How about all your intellectual property on YouTube? Have you assigned a beneficiary for the cryptocurrency you have purchased? Do you have a documented estate plan for all your digital assets?

In today’s world, more and more of our lives are connected to the digital space. We store photos online, use email daily, manage money through online banking, and some people even invest in cryptocurrency. These online accounts and items are called digital assets or digital property, and they are becoming a very important part of estate planning.

When someone passes away, their legal representative or estate trustee is responsible for managing all their property and ensuring their wishes are carried out. This process may prove challenging with physical assets like houses, cars, or bank accounts. However, with digital assets, the process becomes even more complicated, as the process often involves a multi- jurisdictional approach considering legal policies from different countries. These conflicts are called jurisdictional conflicts, and they can cause major problems when setting an estate.

Understanding Digital Assets

Digital assets all the property an individual owns in the digital world. These include online accounts and information that belong to a person such their social media accounts (like Facebook or Instagram), email accounts, online banking and investment accounts, Cryptocurrencies, such as Bitcoin or Ether Online collections of music, movies or photos. Some digital assets have clear financial value, while others carry personal or emotional value. For example, cryptocurrency can be worth thousands of dollars, while a photo library may have little financial value but huge importance to a family. The problem is that digital assets are usually stored on servers in other places around the world. This means that they may be controlled by companies in different counties, which often follow different rules. This can make it hard for Ontario estate trustees to access or transfer these assets after someone passes away.

Jurisdictional Conflicts

In Ontario, estates are usually managed under Ontario’s estate laws. However, with digital assets, the situation is not always straightforward. If a digital asset is controlled by a company outside of Canada, then the laws of that country may apply instead. For example, the European Union’s privacy law, known as the General Data Protection Regulation (GDPR), has very strict rules about access to one's personal data. Therefore, even if an executor in Ontario has the legal right to manage someone’s digital assets, the GDPR may block access unless certain specific conditions are met. This can cause delays, higher costs, and sometimes permanent loss of the assets.

Ontario’s Legal Framework for Estate Administration

Ontario has clear laws for managing estates, such as the Successional Law Reform Act (SLRA), the Estates Act, and the Trustee Act. These laws explain how estates should be handled, who can act as an estate trustee, and what powers they have. However, none of these laws were drafted in consideration of digital assets and are silent on the matter for the most part because these laws were created well before the rise of the internet and digital technology. As a result, estate trustees often face unclear rules when it comes to accessing and managing online property, especially when foreign companies or laws are involved.

Ontario Case Law

Ontario courts have started to look at issues involving digital assets. In Kirshenberg v. Schneider (2023), the Ontario Superior Court of Justice recognized that cryptocurrency held in digital wallets could be protected through interim orders. This shows that the court views cryptocurrency as important property, even though it has not been fully explained under Ontario law. Courts in the United Kingdom and British Columbia, however, have gone further by treating cryptocurrency as property for certain legal purposes. Another case, Corvin v. The Shepherds’ Trust (2024), showed how various estate laws across several jurisdictions can affect estate matters. In this case, Ontario law applied to a Will made by an Ontario resident. However, as the individual also owned property in Italy, Italian law applied to the property located there.

This case is extremely important when considering digital assets, because their "location" is oftentimes difficult to describe. If an asset is stored on a server in another country, then that country’s laws may apply instead of Ontario’s. These are considerations that many traders, bloggers and especially immigrants must consider. Not only is it even more important to have your Wills consider all your digital assets, it's becoming more and more evident that instructions should be left to the executor regarding which jurisdictions these digital assets may be governed by.

Conclusion

Digital assets are now a normal part of life. However, due to insufficient clear legislation, they may bring new challenges to estate planning. As these assets are often stored in different countries, it is common for executor to experience issues with conflicting laws. Ontario’s laws do not yet provide complete answers, and privacy rules in other countries, such as the UK or Australia, could possibly make things even harder. The best way to avoid problems is to plan ahead. By making a list of assets, leaving clear instructions, and getting professional legal advice, people can reduce the risk of jurisdictional conflict and ensure their digital legacy is safe. Yanique Russell Law helps clients to understand the intricacies of digital estate planning and provides guidance on how to leave clear instructions to executors. As technology continues to evolve, estate planning must evolve too, and digital assets should not be ignored.

Source:

Hull & Hull LLP. (2025, September 25.) Jurisdictional conflicts and digital assets. Hull & Hull LLP. https://hullandhull.com/2025/09/jurisdictional-conflicts-and-digital-assets/