At this point, you may have developed an estate plan that includes how your loved ones will eventually inherit your house, the beloved Steinway grand piano, your dad's 88-year-old Swiss watch, or other family heirlooms. We take great care to help ensure every person’s assets are distributed in precisely the manner they outline in their will, but with life increasingly being lived online, you may be overlooking an increasingly important kind of property: digital assets.
What happens to your digital estate when you die? Furthermore, when you think about all the protections that guard your digital assets, how can you ensure that your loved ones can gain legal access to them?
If your estate plan doesn't account for digital assets properly, your heirs may not be able to gain access to them. Family photos and videos could be lost forever, social media accounts could stay online long after you've passed, and your heirs may not receive all the money that you'd like to leave them. As owning digital property becomes the norm, estate plans need to employ new strategies.
Obstacles Preventing Access to Your Digital Assets
Legally, your digital assets are like other kinds of property in that they can be passed on to beneficiaries in your estate plan. However, the laws and practices of social media sites and search engines around digital property are still evolving, which means that loved ones might face some hurdles when they try to gain access to your digital assets (including any digitally encoded financial information). Plan for these obstacles that your beneficiaries could face when trying to access your digital assets after you’re gone:
The very first line of defense, passwords could end up being a preventative barrier to your loved ones collecting their inheritance. If they don’t know your passwords, they may not be able to access information or property stored in your smartphone, computer, online accounts, or the cloud.
Beyond passwords, digitally stored data may be encrypted for an added layer of protection. Encryption can scramble data in a particular location—in a single file, on a device, or in the cloud—so thoroughly that it is practically impossible for anyone without the proper passcode to unscramble it.
Fraud & Identity Theft Laws
Both state and federal laws prohibit unauthorized access to computer systems and private personal data. Although these laws are intended to protect consumers against fraud and identity theft, they also could create obstacles for family members trying to gain access to the digital assets and information of a deceased loved one. Luckily, the legal landscape is evolving to keep up with the rapidly changing online world, but there’s still a lot of grey area to navigate. That’s why it’s essential to ensure that your estate plan gives fiduciaries the authorization they need to access any necessary digital data.
Data Privacy Laws
Federal data privacy laws generally prohibit online account service providers from turning over the contents of your electronic communications to anyone other than the owner without the owner's lawful consent. That means social media sites or other companies may lock up your content unless you give express permission for others to access it, leaving your heirs unable to gain access to photos, email messages, or other information stored on your digital accounts. Fighting for that access in court could prove to be cost prohibitive, so it’s best to develop a plan ahead of time to grant your loved ones access after you’re gone.
How to Make Your Estate Plan Digital-Savvy
Addressing your digital property in your estate plan can help you avoid these obstacles. By organizing and planning ahead, you can arrange for full access to your digital assets, keep administration costs down, and ensure that no valuable or significant digital property is overlooked. Consider taking the following five steps:
1. Make a List of Digital Assets and Passwords
First, the obvious: Make a list of all your online accounts and assets so your loved ones know where to find things when the time comes. There are a few ways to accomplish this, from handwriting them to using an online password aggregator. This list should include all your usernames and passwords, online accounts (including email and social media accounts) and digital property (including domain names, virtual currency, and money transfer apps). Store your list in a secure location and make sure your family members know how to access it.
2. Make Sure You Actually Own the Digital Asset
There are instances where you may have thought you purchased a digital asset, when in fact you purchased a nontransferable license just to use the asset. Check the terms of agreement for vendors of music or other digital assets to see whether they sell the asset itself or simply a license to it.
3. Regularly Back Up Data Stored in the Cloud
Cloud-based technology is wonderful in many ways, but if you want to divvy up portions of your digital property, the easiest way to do it may be by using a thumb drive or external hard drive. That’s especially critical if you don’t want your loved ones to have to jump through hoops to access your digital bequests.
4. Provide Specific Consent in Legal Documents
Perhaps one of the most important steps is to include specific terms regarding who should be granted access to these areas. Will your executor or personal representative have access to everything, or will you selectively choose who can access certain digital assets? Work with an estate planning attorney to update your wills, powers of attorney, and any revocable living trusts to include language giving lawful consent for providers to divulge the contents of your electronic communications to the appropriate people. Or, if a blanket authorization is not appropriate, you might also consider exactly which information you want to make available.
5. Keep Informed of the Changing Digital Landscape
The realm of digital property is continually evolving. It’s important to meet with an estate planning attorney on a regular basis (we recommend every couple years or when a significant life event occurs), to determine if your plan still meets your expectations and legal requirements.
We often counsel our clients to collect paper statements when a loved one passes, and while you used to be able to accomplish this by watching their mailbox, the new reality is that many of the most important communications are now delivered via email, and many of the most important accounts are managed by online portals.
Don’t overlook this critical area of your estate. Talk with estate planning professionals about the steps you can take now, and check in regularly to update your estate plan to accommodate any changes in the law or in your digital property.
You can also download our free Financial and Personal Account Inventory to start creating a comprehensive master list of all of your accounts and assets.
The opinions voiced in this article are for general information only and are not intended to provide specific advice or recommendations for any individual.
This information is not intended to be a substitute for individualized legal advice. Please consult your legal advisor regarding your specific situation.
CFP®, CLU®, Series 7 Securities Registration,1 Series 66 Advisory Registration† Brian has 20 years of experience in the financial services industry, focusing on retirement planning, investments and insurance protection for individuals of all asset levels. He also has a special interest in assisting individuals who work in the public sector. A passionate educator, Brian enjoys sharing his in-depth knowledge through TV appearances, public speaking and...Read More