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Avoid a digital disaster. Your online world should be part of your overall estate plan

by Curtis Lee | Contributor
January 31, 2020

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.

Digital Assets - Flowers in front of a grave

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:

  1. Authorization to access the digital asset cannot be transferred to anyone else.
  2. The company will make each transfer decision on a case-by-case basis.
  3. 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.

How do I create an estate plan?

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life's contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

This article is published by Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at legacyassuranceplan.com.

Phone - 844.445.3422
Email - info@legacyassuranceplan.com
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