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Estate Planning and Digital Assets

by | Aug 12, 2021 | Estate Planning |

In a world gone increasingly remote, managing your digital assets has become an even more important part of estate planning. From email accounts, to digital photos, and cloud-based storage, almost everyone owns some kind of digital asset.

Terms-of-service agreements and privacy policies govern these accounts and generally expire when you die. That means surviving family members may not be able to access your email, photos, social media accounts, or other online accounts.

However, emerging laws are providing a legal path for your executors/personal representatives to manage these assets. These laws also provide a framework to allow tech company “custodians” (e.g., Facebook, Google, or Apple) to safely disclose your assets without violating privacy agreements.

The majority of US states have adopted the Revised Uniform Fiduciary Access to Digital Access Act (RUFADAA) or something similar, and legislation continues to evolve. This legislation allows executors and authorized representatives to access a decedent’s account and handle specific account maintenance or closure actions. Maryland was one of the first states to sign on, enacting the Act in 2016.

Digital assets can include any part of your electronic record, including access to your financial accounts, bitcoin and cryptocurrency, music and photos, licensed domain names, seller accounts on eBay or Amazon, and information stored on your computer and other devices.

If your state has adopted the RUFADDA, your executors may be up against the following limitations:

  • An executor does not have authority over the content of your electronic communications (email, messages, or chats) unless you’ve explicitly granted this disclosure.
  • An executor may petition a court to gain access to your electronic communications, but only insofar as such access is necessary to settle the estate.
  • An executor may get access to other types of digital assets such as photographs, eBay, or PayPal accounts.
  • If an executor does not have your explicit permission to access your account, tech companies may rely on their terms of service to determine whether to grant access.
  • Tech companies may not provide access to joint accounts or deleted assets.

All in all, this means you need to plan for your digital assets. Do you want social media accounts deleted after you’re gone? Do you want your family to have access to your digital photos? Some websites, such as Facebook, have incorporated these kinds of questions and allow you to state in your account settings who can access your account after your death and what they can do with it.

The best way to make sure your wishes are followed is to catalog your online presence and create a legal plan. If you have questions about digital assets after death, talk to a legal professional.