With more and more of our lives shifting to the online and digital world, it's no surprise that we accumulate a significant amount of digital assets or have a well-established online presence. But allowing others to handle them when we die or become incapacitated may take some special planning.
Today, we take social media and other forms of digital and internet technology for granted. But what happens to these digital assets and our online presence if we become incapacitated or die?
For many of us, we'll want some form of closure concerning our online presence. This might include finding a way to let our online friends and acquaintances know what happened to us. And for a select few, there might be significant digital property with tangible monetary value that we wish to pass on or sell.
How can we handle the digital part of our estate? Well, there are several considerations to remember as well as methods to approach this relatively recent estate planning challenge.
Types of digital assets
The Internet is extremely vast, so there is a seemingly endless supply of ways to play, communicate and work online. Digital assets can include:
- Accounts on social media platforms, such as Twitter, Facebook, LinkedIn, Instagram, Reddit, Pinterest and YouTube
- Email accounts
- Online gaming communities
- Digital media, such as photos and videos you've downloaded, whether for free or that you have purchased
- Virtual, digital or cryptocurrency
- Anything on a personal computer, tablet, smartphone or other device
- Web domains
- Blogs
- Any content on a cloud storage platform
- Online bill paying accounts
- Digital subscriptions
- Online entertainment service accounts, such as Netflix or Hulu
Handling digital assets
Creating a digital asset plan in case of death or incapacity is important because most of us will have preferences in how our digital assets are handled. For example, there might be online subscriptions with automatic charges to your credit card or bank account that you'd like to end. Or maybe you want your spouse or child to take over your YouTube channel with a very large number of subscribers that allows for the generation a modest stream of income through ads.
If something happens to you, handling these digital assets can be a challenge. There are two reasons for this.
First, there is the inability to access the digital asset. Usernames, passwords, PINs and/or secret questions will be required to login to the online platform.
Second, there is the issue of someone having the legal authority to access the digital asset. Depending on the terms of service and the state you're in, someone else accessing your digital property could be a violation of the terms of use, state law or federal law, unless they can prove they have your permission. Without a digital asset plan in place, providing this proof may be difficult or impossible to do.
Keep in mind that if something happens to you, the digital asset's terms of service will be the first place to look at how to transfer control. In most situations, one of the following three possibilities will occur:
- Authorization to access the digital asset cannot be transferred to anyone else.
- The company will make each transfer decision on a case-by-case basis.
- The company will only transfer control when an authorized individual can present adequate proof of the original owner's death or incapacity.
Because of these variations, the best thing to do in handling digital assets is to take a two-step approach. One step addresses having the legal authority to handle the asset.
This first step is very important because of the terms of use some companies have. Additionally, there are laws in place that can cause problems. For instance, pursuant to the Computer Fraud and Abuse Act (CFAA), it's illegal to have access to someone else's computer. This includes phones and online accounts, such as social media platforms. Social media sites have used the CFAA to take legal action against unauthorized users.
The second step will address the practical challenge of accessing the asset.
Step 1: Establish a legally recognized fiduciary relationship
If you're creating a traditional estate plan, you will likely be well on your way to setting up this option. Ideally, you'll want your will, trust or power of attorney to provide the authorization to your executor, trustee or agent to handle your digital or other online affairs on your behalf. This can include not just things like putting up a memorial on your Facebook page, but also transferring the asset to another owner.
Most states will recognize this designation thanks to the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). The RUFADAA is a law that outlines how fiduciaries and online companies will handle digital assets, including who is authorized to access them. Many states have adopted the RUFADAA, including the following:
| States that have adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) and year enacted | |
|---|---|
| State | Year |
| Alabama | 2017 |
| Alaska | 2017 |
| Arizona | 2016 |
| Arkansas | 2017 |
| California | 2016 |
| Colorado | 2016 |
| Connecticut | 2016 |
| Illinois | 2015 |
| Indiana | 2016 |
| Kansas | 2017 |
| Maine | 2018 |
| Minnesota | 2016 |
| Nebraska | 2017 |
| New Mexico | 2017 |
| North Carolina | 2016 |
| Oregon | 2016 |
| South Carolina | 2016 |
| Tennessee | 2016 |
| Texas | 2017 |
| Vermont | 2017 |
| Washington | 2016 |
| Source: National Conference of State Legislatures | |
Please note that the above chart is not an exhaustive list of states that have laws concerning access to digital assets. These are just states that have adopted the RUFADAA. At least 46 states have some form of digital assets assess law on their books. Some of these states have adopted an older version of the RUFADAA. The RUFADAA or similar state law should provide your agent, executor or trustee the ability to carry out your wishes concerning your digital assets.
After authorizing your trustee to handle your digital assets, they will have the legal ability to access, distribute and dispose of your digital property. But to make their job as easy as possible, you'll want to also provide them with the actual ability to have control over the digital asset. This means providing the login information for your fiduciary. This can often be done in a digital will.
Step 2: Create a digital directive
A digital directive is designed to handle your digital assets. It can consist of your wishes concerning your digital assets, such as what you want to be deleted or distributed to others and who you want to have access to the digital assets.
At the very least, it should consist of an inventory of your digital assets. This inventory should list what accounts you have and all login related information. This means usernames, passwords, secret questions and associated contact information attached to that account, like an email address.
If legally recognized in your state, your digital directive can also identify a digital executor who can carry out these wishes for you. In many situations, your traditional executor can also be your digital executor.
Creating a trust
Another option for managing digital assets is to place them in a trust. This is useful for companies that have terms of service that state that when the owner of the digital asset dies, no one else can have access or right to the digital property. If such a digital asset is held in a trust, there's no worry about the owner dying or a failure to transfer the asset's ownership.
Even if you wish for the digital asset to be deleted, putting it in a trust might be necessary to ensure that an authorized fiduciary (the trustee, in this case) has unrestricted access to the asset and can dispose of it as you wish.
What you can do now to manage your digital assets
To help streamline the handling of your digital assets, now's the perfect time to do some organizing. This includes:
- Closing any online accounts or otherwise disposing of any unwanted digital assets.
- Making a list of the digital assets you need to take care of.
- Make sure all of your information associated with the asset is correct and up to date.
- Write down the login information for each asset.
- Review each asset's terms of service to see how each company will handle an owner's death or incapacitation.