A digital asset includes any type of electronic data that you have the right to access and use on a device or online.
What are some examples of digital assets?
-
Content stored on devices, such as:
- Cell phones
- Laptops
- Tablets and e-readers
- Thumb drives, flash drives, SD cards, external hard drives
- Financial accounts
- Utility accounts
- Social media accounts (i.e., Facebook, Twitter, Instagram, Pinterest, LinkedIn)
- Google accounts
- Email accounts
- Cryptocurrency
- Non-fungible tokens (NFTs)
What happens to digital assets when the owner dies?
Digital assets are often lost forever when the owner dies. Estate and inheritance laws have not caught up with the growing use of digital assets, and most people do not realize the importance of creating an estate plan that includes their digital assets.
The three main reasons that digital assets are often lost at the owner's death are:
The family does not know the digital assets exist
The passwords are unknown
The online account provider's rules block access
Can my family access my digital assets after my death?
The primary reason that digital assets stored on both physical devices and in online accounts cannot be accessed after the owner's death is that the family members are unaware that they exist or do not have the correct access information (passcodes, usernames, etc.).
Whether your family can access your known digital assets after your death is heavily dependent on whether the digital asset is stored on a physical device or an online account. In general, family members can access digital assets on a physical device if the passcode is available. In contrast, digital assets on an online account often cannot be reached because such access is prohibited by the site's terms of use agreement.
Why should digital assets be included in your estate plan?
Many people overlook digital assets when creating their estate plan, but these assets should not be forgotten. Below are five of the top reasons why you should include digital assets in your estate plan.
Make administration of your estate easier
Prevent identity theft
Prevent financial loss to estate
Preserve memories
Prevent unwanted secrets from being discovered
What are the obstacles to planning for digital assets?
THE ONLINE PROVIDER'S TERMS OF USE
Digital assets are unique in that a private contract (the provider's terms of service agreement), not state statutes, controls their access and transfer at the owner's death. Most service providers require online accounts to be held in an individual name and forbid third parties, including personal representatives, successor trustees and family members, from accessing or transferring the digital asset at the owner's death. Rather than grant access to the family, many service providers simply delete the account if they are notified of the account holder's death.
STORED COMMUNICATIONS ACT (18 U.S.C. SEC 2702)(1986)
This federal law creates privacy rights to protect the contents of certain electronic communications and files by certain providers of electronic communications services or remote computing services. If the law applies, an online account service provider is prohibited from disclosing the contents of electronic communications and files. The law does not contain an express exemption regarding transferring the contents of an online account to a personal representative during estate administration.
COMPUTER FRAUD AND ABUSE ACT (18 U.S.C. SEC 1030)(1986)
In certain circumstances, this law makes it a criminal offense (a felony) to access another person's online account, even with the password. This law was passed to prevent fraud and reduce identity theft, but it can also be a major obstacle to families accessing the online accounts and digital assets of a deceased family member. Many service providers cite this statute when refusing to allow family members to use or reset the password for a deceased person's account.
