Unless you live off the grid, it’s likely your digital life will outlive you and become a part of your legacy. Your digital assets may have significant financial or personal value for your heirs. Consequently, you should give some thought to how these assets should be managed after your death. And if your parents have digital assets, this is something you’ll want to discuss with them as well.
To handle this important but often overlooked aspect of estate planning, you need to know what a digital asset is, why you need to incorporate digital asset considerations into your estate plan, the legal limitations you may encounter if you want to transfer digital assets to your heirs, and the kind of language you may want to add to your will.
What are digital assets?
If the concept of digital assets seems foreign to you or you believe this doesn’t apply to your situation, ask yourself this question: How many password-protected accounts do you have?
If you keep mental inventory, use a password manager, or have a written record of your passwords (which, by the way, is the least secure method of keeping track of them), take a quick count. You’re likely to find you may have some or all of these types of accounts:
• Email accounts
• Online bank accounts
• Online brokerage accounts
• Online shopping accounts
• Online bill paying
• Social media accounts
• Photo and video sharing accounts
• Gaming accounts
• Online storage accounts
• A website or blog
• A domain name
• Materials and coding that are copyrighted
Your password-protected accounts contain your digital assets. These digital materials are part of your virtual life, as is any digital property you own, such as computers, external drives, storage devices, smartphones, digital cameras, e-readers, and other devices.
But when it comes to digital assets, we tend to think of them differently than we do physical items we own.
Chances are, you’ve already thought about who will get your most cherished art, your record collection, and boxes of old family photos after your death. But what about the items you’ve saved online?
Perhaps you remember getting boxes of paper files containing your parent’s financial records, but these days much of your data is stored online. Your grandmother’s old journals and recipes may have been handed down in a journal with care, but what if yours are saved on a self-hosted blog or in your email? Will your family be able to access or save them?
Digital assets can be valuable — both monetarily and sentimentally — and should be considered in your estate planning.
Challenges in Digital Estate Planning
While digital assets may hold significant monetary or personal value for your heirs, digital estate planning can be tricky.
Many digital accounts and assets cannot be transferred to a new owner because they are not your property. In many cases, you don’t actually own them outright, even if you bought them. Assets that fall into this category are subject to contracts and licensing agreements established with a service provider.
For example, suppose you’ve spent significant sums accumulating a virtual music library. In that case, you may not be able to pass it on through a will or another estate planning tool because you do not own the digital music files. This may also be true with other types of accounts.
Digital Account Management for Estate Plans
While many digital accounts and assets cannot be transferred to a new owner because they are not your property and instead are subject to contracts and licensing agreements established with a service provider, this does not mean you have no control over what happens to these accounts.
Your estate can leave instructions about account management and should provide a complete record for your executor.
Here’s an overview of what to cover in your instructions:
Leave usernames and passwords for any online financial accounts – banking, utilities, brokerage, mortgage, retirement plan, life insurance, tax preparation, or others – to the executor as they will need this information to pay bills, close accounts, and administer your estate.
Social media companies have wide-ranging policies regarding the management of digital assets upon the death of the user. Some delete or deactivate accounts after being notified of a death. Others put accounts into ‘memorial’ status.
In general, these companies will not know about the death until they’re notified. As a result, a digital executor who is armed with passwords may be able to access your account to post final updates, delete items (per estate instructions), or delete/deactivate accounts.
Email and Blogs
Email accounts, online communities, and blog management may also be guided by provider agreements. However, your executor may be allowed to notify friends or followers of your death and then delete, print, or archive your communications.
Digital photos that are stored online may be passed on through a will or another estate planning tool.
If you have one or more websites, domain names may have value and be transferable.
If you have an online store, you may want to leave instructions about what should happen to the store, the items for sale, and any income or profits that may continue to arrive.
Depending on your situation, there may be a lot to consider and include. The last thing you want to do is leave loose ends, preventing your heirs from being able to access important digital assets, take care of business, or communicate on your behalf.
Adding Digital Assets to Your Will or Trust
Currently, there is no uniform federal law to guide the management of digital assets.
At the start of 2017, Kiplinger reported, “Federal law regulating access to digital property does not yet exist. At this time, 29 states have established legislation or laws to protect digital assets and to provide a deceased person’s family procedures and rights to manage those accounts and assets after death.”
Regardless, it can still be a good idea to include language that specifies your wishes for the treatment of each of your digital accounts. It’s up to you to talk to your estate attorney about your wishes and make sure they know this is an important concern for you.
Additionally, check the law in your state. Talk with your attorney or advisor about whether any laws your state has that apply to digital assets, and make sure your estate plan is consistent with these laws.
Take Inventory and Make a Plan
While estate and inheritance laws are behind the curve regarding digital assets, it is important to inventory your digital assets and decide how they should be managed upon your death.
Start by taking inventory of all of your digital devices and password-protected accounts that contain your digital assets. This may include email accounts, online banking and brokerage accounts, bill paying accounts, social media, photo sharing, storage, websites or blogs, and more, as well as computers, external drives, storage devices, smartphones, digital cameras, e-readers, and other devices.
Next, determine what assets can be transferred legally and which cannot. Find out what your executor or heirs can do and how they need to go about doing it.
Then, leave instructions for how your digital accounts should be managed in your estate plan, add the appropriate language to your will or trust, and ensure you and your attorney are familiar with your state’s laws regarding digital assets and estates.
If you would like additional information about estate planning, please give us a call.
The opinions voiced in this material are for general information only and are not intended to provide specific advice or recommendations for any individual.