Incorporating Digital Assets into Your Estate Plan

Digital assets, unlike many physical assets, often leave no “paper trail,” making it challenging for your family to access them without specific provisions in your estate plan. Here’s how to properly address them in your estate plan.

Inventory Your Digital Assets

Start by creating a comprehensive list of all your digital assets, including website addresses, usernames, passwords, and account numbers. These assets may encompass:

• Email accounts
• Social media accounts
• Digital photo, video, music, and book collections
• Online banking and brokerage accounts
• Online reward programs and points, such as credit card rewards or frequent flyer miles

Provide clear instructions for accessing these assets, especially if they are password-protected or encrypted. Store this list in a secure location and ensure your family knows where to find it. Using an online password management solution can simplify this process.

Authorize Access

Merely providing your representatives with login credentials for your digital assets isn’t enough. They will also need legal consent to access and manage your accounts.

Without explicit consent, your representatives could potentially violate federal or state data privacy laws or be accused of theft or misappropriation. Although it’s unlikely that authorities would prosecute your representatives for unauthorized access, it’s prudent to ensure they have explicit legal authority.

Comply with Federal Laws

For digital assets you own, such as bank and investment accounts, your estate plan can facilitate the transfer of these assets to your heirs. However, many—such as email and social media accounts, as well as certain music and book collections—are licensed rather than owned. These assets are typically governed by Terms of Service Agreements (TOSAs), which often state that the licenses are nontransferable and terminate upon your death.

Utilize Legal Frameworks

Fortunately, there are laws in place to govern access to digital assets in the event of your death or incapacity. Most states have adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which provides a three-tier framework for accessing and managing digital assets:

1. Priority to Online Tools: The act gives priority to providers’ online tools for handling the accounts of customers who die or become incapacitated. For example, Google’s “Inactive Account Manager” allows you to designate someone to access and manage your account. Similarly, Facebook lets users decide whether their accounts will be deleted or memorialized upon death and allows designation of a “legacy contact” to manage their memorial pages.
2. Estate Planning Documents: If online tools aren’t available or you don’t use them, access to digital assets is governed by provisions in your will, trust, power of attorney, or other estate planning documents.
3. Terms of Service Agreements: If you don’t grant authority to your representatives in your estate plan, access to digital assets defaults to the provider’s TOSA.

Ensure Access for Loved Ones

To ensure your loved ones can access your digital assets, use the online tools provided by service providers or include explicit authority in your estate plan. If you have questions about properly addressing your digital assets in your estate plan, please contact us for guidance.