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Digital Assets - or What Happens to My Facebook Account When I Die?

In client review meetings, we often review assets, account titling, and beneficiaries.  We discuss if your estate plan is up to date and matches your wishes.  With the increasing importance of our digital lives, we also need to be talking about digital assets.  I am not an attorney and am not offering any legal advice.  My role is to help you consider various options in protecting and transferring your legacy.   Please check with your attorney for his or her most up to date and relevant opinion for your own situation.  

When you think of your estate plan and what’s important for you to protect after your death, it’s likely that your immediate worries center on your assets with the highest financial or sentimental value—your bank, investment and retirement accounts, home, precious jewelry, family heirlooms and expensive cars or boats. It’s important to protect these things, as they can provide significant financial assistance to your family or to charitable organizations. However, in today’s digital age, focusing only on your largest valuables may cause you to overlook things that you likely use every day, yet never think of in terms of estate planning—your digital assets. 

Overlooking a digital estate plan can mean setting your family members and executor up for a long and arduous process of tracking down your account information and arguing with legal departments over gaining access to these assets. Unfortunately, this puts both your digital assets and your digital reputation at risk. By setting up a solid digital estate plan, you can ensure that you both maximize the financial benefit to your heirs and protect your own postmortem reputation.

In many states, digital assets are now covered under the “Uniform Fiduciary Access to Digital Assets Act, Revised" or “RUFADAA”.  For the first time property law recognizes the existence of digital property and gives it similar characteristics for management as tangible property.  Given that, if you have a robust digital life, it’s important to consider that in your personal estate planning.  Unless your documents are recent, there is a good chance that you do not have any provisions for digital asset planning in your estate planning documents.  

Just like inventorying financial assets for a proper estate plan is important, inventorying digital assets is a very important step in this process as well, and perhaps the most difficult.  

The first step toward creating a digital estate plan is making a list of all your digital assets. Consider the following when creating your digital inventory:

•Social media accounts (Facebook, Twitter, LinkedIn)

•Blogs or websites that you own

•Email accounts

•Online retail accounts

•Mobile apps that link to a digital wallet, such as Starbucks

•Music files

•Frequent flier miles or other points/rewards systems

•PayPal or eBay accounts

•eBooks

While not all of these accounts may be tied to a financial asset (e.g. social media accounts), you will likely still want some action taken on them upon your death. Once you have a list of all of your digital accounts, it’s important to write down each of your usernames and passwords in a secure location. The average Internet user has approximately 26 different accounts and 10 unique passwords, so if you don’t keep a resource with this information, tracking it down may be impossible for your executor.  You can consider utilizing a online password manager or you can also store this information on an encrypted flash drive or CD, or keep a list in a safe deposit box. No matter how you choose to store this information, make sure you don’t store it in your will, as it will become public if it goes through probate, allowing anyone access to all of your accounts. Try to update your username and password list on a regular basis or it will not be useful.  The use of an online password manager would allow you to keep an ongoing record of your account and typically you can add an authorized user.  

Keep in mind that legal issues may prevent just anyone from accessing these accounts; some terms-of-service agreements limit access to authorized users, no matter what. Some may have exceptions if an executor is logging in “in the best interests of your estate,” or may release certain contents of the account, such as photographs or posts, to the executor, but not the actual account information. These restrictions will also vary according to state law.  

Writing your digital estate plan

Once you’ve inventoried all of your digital assets, you then have to decide what you want done with them. For your social media accounts, do you want them memorialized, deleted or left as is? Do you want your digital photos printed out and sent to a family member? Do you want your email accounts destroyed, or are you comfortable with your family going through them? If you own a website domain name, your executor may be able to sell the domain, especially if it is an in-demand one.

Depending on the state in which you live, you may be able to formalize this document into a legally binding one; however, legislation is still ongoing in many states regarding digital estate planning. As of January 2018, 30 states have introduced laws that relate to digital assets. Whether legally binding or not, you should tell a trusted advisor, family member or executor where this document lives, and ideally you should keep it in the same place as your password and login list. If you wish to name someone other than your executor as the authorized user on all of your accounts, you should detail this in this document as well—but remember that according to legal terms of service and your state’s laws, he or she may not gain full access.

Be aware that some digital companies offer estate management tools built in to their services; Google, for example, allows you to opt into its “Inactive Account Manager,” which will contact a representative of your choice if your account goes inactive for a specified period of time. This tool will attempt to contact you before notifying your representative/account beneficiary and providing him or her with links to download your photographs, videos, documents or other data left to him or her. Facebook has a setting that allows you to add a legacy contact.   While many of the legal aspects of digital estate planning are still in flux, it’s important to be conscious of the digital assets that you own and the way that not only your assets, but also your digital identity will be managed after your death.