In today’s increasingly digital world, an individual’s electronic assets are an important part of their estate. Everything from social media accounts to digital photographs to email can be considered a digital asset, and it is essential to properly account for the digital asset category in an estate plan.
“Providing for the appropriate treatment of digital assets should be part of any good estate planning attorney’s toolkit,” says Zach Goldaber, an estate planning attorney at Curtis, Mallet-Prevost, Colt & Mosle LLP.
“Clients use them every day. While a social media account or airline miles may not have the monetary value of a piece of real property or an investment account, they can carry real sentimental value and provide some real-world benefits.” Goldaber notes that there’s no unified way to transfer or dispose of digital assets–every service and website has its own methodology–which means failing to factor digital assets into an estate plan can create a real headache for a decedent’s executors or personal representatives. “Clients should think about the electronic legacy they’d like to leave and whom they want to put in charge of that legacy.”
The following steps will help you accomplish that goal.
Begin by documenting all your online accounts, including email and social media, and the relevant passwords. Determine what you would like to happen to them after your death.
Besides email and social media accounts, digital assets can include:
Certain tech companies have established ways for users to set up “legacy contacts,” meaning trusted individuals who can be authorized to access an individual’s data after that person’s death. Here are links on how to find the legacy contact pages for some major tech companies:
Using Apple’s Legacy Contact process as an example, the person designated as a Legacy Contact can request access to your data after your death by providing a death certificate and an “access key,” which is a QR code and a series of letters and numbers. As the Washington Post noted, a Legacy Contact “will have access to a wide range of data, and there’s no way to customize what they can see.” That means they can access messages, photos, and files stored in iCloud, along with your call history, email, health data, notes, contacts, calendars, voice memos, Safari bookmarks, and reminders. For that reason, it’s important to consider carefully whom you designate as a legacy contact.
As the ABA Real Property, Trust and Estate Law Section previously covered, an Executor or Personal Representative does not automatically gain access to a decedent’s online accounts without specific consent from the decedent. Nearly every state has adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). For people who die living in one of those states, legal representatives will be able to access a decedent’s online accounts if:
“My Executors may take any action with respect to my Digital Assets, Digital Accounts, and Digital Devices, as my Executors shall deem necessary or appropriate, and as shall be permitted under applicable state, Federal, or international law, giving due effect to the authorization provided in this paragraph. This authority shall include, but shall not be limited to, (a) the authority to access or control any Digital Device, including any computer, camera, telephone, or data storage device owned or lawfully used by me, individually or jointly, (b) the authority to manage, control, delete, or terminate any e-mail, telephone, bank, brokerage, investment, insurance, social networking, internet service provider, retail vendor, utility or other account which was owned or lawfully used by me, individually or jointly, and (c) the authority to change my username and password to gain access to such accounts and information. I expressly authorize the disclosure to my Executors of (a) a full catalogue of my Digital Assets and Digital Accounts, including a full catalogue of my electronic communications, and (b) all content of electronic communication sent or received by me. My Executors may engage experts or consultants or any other third party, and may delegate authority to such experts, consultants or third party, as necessary or appropriate to effectuate the actions authorized under this paragraph. This authority is intended to give my ‘lawful consent’ for my Executors to take the actions described in this paragraph, to the fullest extent allowable under The Electronic Communications Privacy Act, as amended, the Computer Fraud and Abuse Act of 1986 as amended, the Gramm-Leach-Bliley Act, as amended, and any other Federal, state, or international laws that may require such consent or authorization. To the extent that a specific reference to any such law is required in order to grant my Executors the authority described in this paragraph, I hereby express my intent to reference such law, whether currently in existence or enacted or amended to require such reference after the date of this Will.”
Make sure that your executor or personal representative has a list of your digital assets, including email and social media accounts. Your representative should also have the passwords to access those assets and up-to-date log-in information.
Just as estate planning experts recommend reviewing your will and estate planning documents every few years or upon a major life event like marriage or divorce, individuals should keep their digital asset plan current. This requirement means keeping your digital asset plan separate from your will and other estate planning documents and reviewing it at least once a year to ensure the accounts and passwords are still accurate.
By taking the steps outlined in this article, individuals can make sure that their digital assets are accounted for in their estate plans. Given how often and the degree to which technology changes, though, it’s important to keep digital asset estate plans up to date.
