Digital assets include online bank accounts, social media accounts, personal records, photographs and more. Anything you access online that requires login information is considered a part of your digital estate. It is important to note the digital assets that can and cannot pass through your will. For instance, assets you own or that are transferable, meaning they have a monetary value, can easily be included in your will. Examples of such transferable digital assets include, but are not limited to, PayPal account funds, Bitcoin, and digital music files.
On the other hand, digital assets that cannot pass through your will include email accounts, subscription services such as Netflix, and social media accounts. Email and social media accounts are not transferable, because while you do have the right to use them, you do not own them in the legal sense.
The Digital Estate Planning Process
Naming a digital executor is an important step in your estate planning process because they will see to it that your digital assets are distributed according to your wishes. A digital executor is someone with the responsibility of dealing with your digital assets post-mortem. This person will have the legal authority to handle the affairs of your digital estate, which may include paying maintenance fees or any debts you have accumulated. It is also advisable to plan for your digital assets, because if you do not, due to privacy laws, your family may not have access to certain information they need following your passing. The first step is to make a list of all your accounts with their respective usernames and passwords. You must then find somewhere safe to keep this information, such as in a safety deposit box or with a trusted attorney such as the Estate Planning Attorney Brooklyn NY locals turn to.
Digital Asset Management
Multiple states have started to give executors more rights that enable them to have legal access to the assets of the deceased. If you want to restrict your executor from having access to certain digital assets, talk with an estate planning attorney to explore your options. Upon your death, some states may have laws that allow for your accounts to be deleted, whereas other places may make the family get a court order allowing them to see the accounts of the deceased. This can be a time-consuming process during which inactivity may cause the account to be deleted before access can even be granted.
You have a few options regarding the management of your digital assets. For instance, there are apps such as which serve as digital password managers. Such apps can allow you to store your passwords and enable an emergency access feature in which anyone you specify can gain control of your passwords in the event that you are no longer capable of managing them yourself. Corporate giants such as Google have also put such features in place. The company’s Inactive Account Manager lets you designate a person you trust to gain control of your accounts after a given time of inactivity.
Forgetting Your Password
If you have forgotten your password and cannot regain control of your account, you may be in jeopardy of losing your stored information, because certain accounts will be deleted after a given period of inactivity. For instance, Gmail accounts self-terminate after 9 months of no use. Similarly, after prolonged inactivity, Instagram reserves the right to delete accounts. Likewise, Twitter states that they have the authority to delete profiles after 6 months of no use. However, accounts such as Facebook will never delete your accounts after inactivity. If a user with a Facebook profile passes away, the company allows their profile page to become memorialized. This means that no new activity or posts can be made on the user’s behalf, though others can share pictures, leave condolences and even continue to send private messages.
It is important to know about your rights surrounding your online accounts. While most of us have agreed to the Terms of Service when signing up without actually reading it, it is important to go back to the fine print when in the process of your digital estate planning to see how you can manage your assets.
Forgetting to Pass on Your Password
If you do not include your passwords in your digital estate plan, you may jeopardize your digital assets after you pass away. As aforementioned, some accounts will self-terminate after prolonged inactivity, though some may continue as before. The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), addresses whether and how a family member, executor, attorney-in-fact, or trustee can access digital assets. As of today, 34 states have adapted this statute and more are expected to follow this route. The RUFADAA statute demands “express authorization” before anyone else has the right to access the contents of the digital assets. If you do not plan for your digital assets before you pass, under RUFADAA, your executor still has the ability to ask for and potentially gain access.
If you do not include a list of your passwords when you pass, there are other ways to ensure that both your family and fiduciaries will have access to your digital assets. It is advisable to consult with an attorney about your will and certain provisions that can be added which allow an executor the right to access your digital, non-financial accounts. Furthermore, you may want to make changes to the language in your trust to ensure that your trustee will have access or to give your power of attorney agent the ability to handle your digital assets on your behalf.
Digital assets are often overlooked in the estate planning process, though they can be just as important as the affairs of physical assets. Please contact an experienced estate planning attorney to discuss your estate planning needs and ensure your digital assets do not get lost in cyberspace after you pass.
Thanks to authors at The Law Office of Inna Fereshteyn for insight into Estate Planning Law.