Recent advances in digital technology have made many aspects of our lives exponentially easier and more convenient. But at the same time, digital technology has also created some serious complications when it comes to estate planning. In fact, if you haven’t properly addressed your digital assets in your estate plan, there’s a good chance that most of those assets will be lost forever when you die.
Without the proper estate planning, just locating and accessing your digital assets can be a major headache—or even impossible—for your loved ones following your incapacity or death. And even if your loved ones can access your digital assets, in some cases, doing so may violate privacy laws or the terms of service governing your accounts. Plus, you may also have certain digital assets that you don’t want your loved ones to inherit, so you’ll need to take steps to restrict or limit access to those assets.
Indeed, there are several special considerations you should be aware of when including digital assets in your estate plan. Here we’ll discuss the most common types of digital assets, along with the current laws governing them, and then we’ll offer some practical tips to ensure your digital property is properly accounted for, managed, and passed on in the event of your incapacity or death.
Types of Digital Assets
Digital assets include a wide array of digital files and records that you have stored in the cloud, on smartphones and mobile devices, or on your computer. When it comes to estate planning, your digital assets will generally fall into two categories: those with financial value and those with sentimental value, which could mean far more to the people you love (and your future generations) than the assets with financial value.
Digital assets with financial value include cryptocurrency like Bitcoin or Ethereum, online payment accounts like PayPal or Venmo, loyalty program benefits like frequent flyer miles or credit card reward points, domain names, websites and blogs generating revenue, as well as other intellectual property like photos, videos, music, and writing that generate royalties. Such assets have real financial worth for your loved ones, not only in the immediate aftermath of your death or incapacity, but potentially for years to come.
Digital assets with sentimental value include email accounts, photos, video, music, publications, social media accounts, apps, and websites or blogs with no revenue potential. This type of property typically won’t be of any monetary value, but it can offer real sentimental value and comfort for your family following your death and inform future generations in ways you may not have considered.
As an example, I cherish an image of one of my ancestors from the 1920s, and I only wish I knew more about him to inform my own understanding of life. Imagine if your future generations can use your digital assets to learn from your experiences as a direct result of how you handle those assets in your estate plan.
Do You Own Or License The Asset?
Although you might not know it, you don’t own many of your digital assets at all. For example, you do own assets like cryptocurrency and PayPal accounts, so you can transfer ownership of these items in a will or trust. But when you purchase some digital property, such as Kindle e-books and iTunes music files, all you really own is a license to use it. And in many cases, that license is only for your personal use and is non-transferable.
Whether or not you can transfer this licensed property depends almost entirely on the account’s Terms of Service Agreements (TOSA) to which you agreed (or more likely, simply clicked a box without reading) upon opening the account. While many TOSA restricts access to accounts only to the original user, some allow access by heirs or executors in certain situations, while others say nothing at all about transferability.
Review the TOSA of your online accounts to see whether you own the asset itself or just a license to use it. If the TOSA states the asset is licensed, not owned, and offers no method for transferring your license, you’ll likely have no way to pass the asset to anyone else, even if it’s included in your estate plan.
To make matters even more complicated, though your loved ones may be able to access your digital assets if you’ve provided them with your account login and passwords, doing so may violate the TOSA and/or privacy laws. To legally access such accounts, your heirs will have to prove they have the legal authority to access them, a process which up until recently was a huge legal grey area.
The good news is most states have adopted laws that help clarify how your digital assets can be accessed and disposed of in the event of your death or incapacity.
The Law of the Digital Land
Until very recently, there were no laws governing who could access your digital assets in the event of your incapacity or death. As a result, if you died without leaving your loved ones your usernames or passwords, the tech companies who controlled the platforms housing the assets would often delete the accounts or leave them sitting in a state of online limbo, inaccessible to your family and friends.
This gaping hole in the legal landscape caused considerable heartbreak for families looking to collect their loved one’s digital history, and it caused major frustration for the executors and trustees charged with cleaning up the estate—it also led to the loss of an untold amount of both tangible and intangible wealth. The federal government finally stepped in to find a solution for this problem starting in 2012, and by 2014, the Uniform Law Commission passed the Uniform Fiduciary Access to Digital Access Act (UFADAA).
A revised version of this law, the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) was passed in 2015, and as of March 2021, it has been adopted in all, including Kansas and Missouri, but four states. The law lays out specific guidelines under which fiduciaries, such as executors and trustees, can access your digital assets. The Act allows you to grant a fiduciary access to your digital accounts upon your death or incapacity, either by opting them in with an online tool furnished by the service provider or through your estate plan.
The Act offers three-tiers for prioritizing access. The first tier gives priority to the online provider’s access-authorization tool for handling accounts of a decedent. For example, Google’s “inactive account manager” tool lets you choose who can access and manage your account after you pass away. Facebook has a similar tool that allows you to designate someone as a “Legacy Contact” to manage your personal profile.
If an online tool is not available or if the decedent did not use it, the law’s second tier gives priority to directions given by the decedent in a will, trust, power of attorney, or other means. If no such instructions are provided, then the third tier stipulates the provider’s TOSA will govern access.
The bottom line: If you use the provider’s online tool—if one is available—and/or include instructions in your estate plan, your digital assets should be accessible per your wishes in most every state under this law. However, it’s important that you leave your fiduciary detailed instructions about how to access your accounts, including usernames and passwords, because without such information, your executor or trustee won’t be able to even access, much less manage, your digital assets if something happens to you.
Make a Plan for Your Digital Assets
Given that leaving detailed instructions is the best way to ensure your digital assets are managed in exactly the way you want when you die or if you become incapacitated, in the second part of this series, we’ll offer practical steps for properly including your digital assets in your estate plan. Meanwhile, contact us, as your Personal Family Legacy Lawyer, if you have any questions about your digital property or how to include it in your estate plan.
5 Steps For Including Digital Assets In Your Estate Plan
If you’re like most people, you most likely own numerous digital assets, some of which may have significant monetary value and some which have purely sentimental value. You may also own digital assets which hold no value for anyone other than yourself or have certain digital property that you’d prefer your family and friends not access or inherit when you pass away.
To ensure all of your digital assets are properly accounted for, managed, and passed on exactly the way you want, take the following five steps:
1. Create a detailed inventory with access instructions: Start by creating a list of all the digital assets you currently own. Then, for each asset on your list, provide detailed information about where the asset is stored online and how it can be accessed, including all of the relevant login information and passwords. If you have a lot of different accounts, password management apps, such as LastPass, can help simplify this effort.
If you own cryptocurrency, prepare detailed instructions about how to access your cryptocurrency, and ensure that one or more people you trust know that you have a cryptocurrency and how to find your instructions. Because accessing cryptocurrency requires correct usernames and private keys, as well as knowledge of wallets, digital exchanges, and other storage devices, leaving a detailed “How To” guide may be essential to ensure your loved ones can access these assets.
After you’ve created your inventory and access instructions, store these documents in a secure location with your other estate planning documents, and ensure your fiduciary (executor or trustee) and your lawyer (if you have an ongoing relationship with a trusted lawyer), knows how to access these documents in the event something happens to you. Back up any digital assets stored in the cloud to a computer, flash drive, or other physical storage devices to make them easier to manage. And remember to update your digital-asset inventory regularly to account for any new digital property you acquire or accounts you close.
2. Add your digital assets to your estate plan: Once you’ve created your inventory of digital assets, you’ll need to add those assets to your estate plan. As with any other asset you own, you’ll typically pass your digital assets to your loved ones through either a will or a revocable living trust. Consult with us, your Personal Family & Legacy Lawyer about which strategy is best suited for your particular situation.
From there, specify in your will or trust the person, or persons, you want to inherit each asset and include detailed instructions for how you’d like the asset to be managed in the future if that’s an option. Additionally, some assets might be of no value to your family or be something you don’t want them to inherit or even access, so you should specify that those accounts and files be closed or deleted by your fiduciary.
Do NOT provide the specific account info, logins, or passwords in your estate planning documents, which can be easily read by others. This is especially true for wills, which become public records upon your death. Keep this information stored in a secure place, and let your fiduciary know how to find and use it. Consider using a digital asset management service, such as Directive Communication Systems, to support you with securing and managing all of your digital assets
It’s also a good idea to include terms in your estate plan allowing your fiduciary to hire an IT consultant if necessary, especially if your fiduciary doesn’t have a lot of technical knowledge. This will help them manage and troubleshoot any technical challenges that come up, particularly with highly complex assets like cryptocurrency.
Alternatively, if your fiduciary isn’t particularly tech-savvy, you can designate a separate co-fiduciary just to manage your digital assets, known as a digital executor. A digital executor is someone who’s specifically tasked with accessing and managing your digital assets upon your death, and this might be a smart move if you have a lot of digital property or you own highly encrypted digital assets like Bitcoin.
Meet with us, your Personal Family and Legacy Lawyer to help decide if you should have a digital executor or would be better off using a different arrangement to manage your digital assets.
3. Limit access: In your estate plan, you also need to include instructions for your fiduciary about what level of access you want him or her to have. For example, do you want your executor or trustee to be able to read all of your emails, texts, and social media posts before deleting them or passing them on to your loved ones? If there are any assets you want to limit and/or restrict access to, we can help you include the necessary terms in your estate plan to ensure your privacy is fully honored.
4. Include relevant hardware: Your estate plan should also include provisions for any physical devices—smartphones, computers, tablets, flash drives—on which the digital assets are stored. Having quick access to this equipment will make it much easier for your fiduciary to access, manage, and transfer the online assets. And since the data can be wiped clean, you can even leave these devices to someone other than the person who inherits the digital property stored on it.
5. Check service providers’ access-authorization tools: Review the terms and conditions for each of your online accounts. Some service providers like Google, Facebook, and Instagram have tools that allow you to easily designate access to others in the event of your death. If such a function is offered, use it to document who you want to access and manage these accounts when you pass on.
Just make certain the people you named to inherit your digital assets using the providers’ access-authorization tools match those you’ve named in your estate plan. If not, the provider will probably give priority access to the person named with its tool, not your estate plan.
Don’t Neglect Your Digital Assets In Your Estate Plan
As technology continues to evolve and our lives become increasingly digitized, it’s vital that you adapt your estate planning strategies to keep pace with these changes. As your
Personal Family & Legacy Lawyer, we can assist you in updating your estate plan to include not only your traditional wealth and property but all of your digital assets as well.
As your Personal Family & Legacy Lawyer, we are keenly aware of just how valuable your digital property can be, and our estate planning strategies are designed to ensure your digital assets are preserved and passed on seamlessly to your loved ones in the event of your death or incapacity. Furthermore, we can accomplish all of this while ensuring you have the maximum level of privacy, and you stay in full compliance with the latest laws and regulations governing the ever-changing digital universe. Contact us today to get started. 913-228=3144
This article is a service of KC Legacy Law and attorney Michael Jahn, Personal Family & Legacy Lawyer. We do not just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth & Legacy Planning Session, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today at 913-228-3144 to schedule a Family Wealth & Legacy Planning Session and mention this article to find out how to get this $750 session at no charge.