In the last twenty years, smartphones, tablets, computers, and apps have become part of our daily lives. Americans are increasingly dependent on these technologies to create, store, and access personal belongings and accounts that exist only in digital format. Even though these digital assets are a large part of our lives, most people only account for their tangible assets—house, car, bank accounts, etc., when preparing estate planning documents. But what will happen to your photos and music saved in the cloud or your social media accounts?
What are digital assets?
Digital assets are anything someone owns that exists in a digital format rather than a physical one. A few examples of digital assets are:
- Email accounts
- Subscription services
- Photo and document storage (Dropbox, Shutterfly, Google Photos)
- Social media accounts and their content
- Blog accounts
- Credit card points
- Web domain names
- Cryptocurrencies (including bitcoin)
- Online storefronts
- Monetized social media accounts
Some digital assets have purely sentimental value, such as stored photos and videos. Other assets can have substantial monetary value, such as cryptocurrency, monetized social media accounts, non-fungible tokens (NFT’s), and unpublished written manuscripts. Regardless of the value associated with digital assets, they should be included in your estate plan.
Digital assets should be treated the same as physical assets when setting up your estate plan. As with physical assets, any digital assets may be specifically mentioned and left in your will or trust to a particular beneficiary, such as a child, sibling, religious organization, or charity. Digital assets that are not specifically mentioned and devised to a particular beneficiary in your will or trust will be included in your residuary estate and will pass to whomever you have designated as your residual beneficiaries.
However, unlike physical assets, digital assets often only exist on storage devices, computer hard drives, or in the cloud on computer servers that could be located anywhere in the world. Accessing these digital assets usually requires logging into an account with a specific username and password associated with that account. This can present a significant problem for your executor or heirs if they do not have this login information. The account provider will typically not provide access to your executor or heirs absent proper documentation and specific language used in the pertinent estate planning documents. This digital protection is a fraud prevention measure meant to protect your property and your personal information, but it can prevent your loved ones from gaining access to your accounts and any digital assets stored there.
Virginia Uniform Fiduciary Access to Digital Assets Act
Virginia has adopted the Revised Uniform Fiduciary Access to Digital Assets Act. Virginia Code § 64.2-116 et seq. The Act allows your executor or administrator to have access to your digital assets. Therefore, if you die without a will, upon obtaining proper proof that you have been appointed as the executor or administrator of your estate (i.e. a letter of appointment), the service provider will allow the executor or administrator to have access to your digital assets unless the service provider’s terms of service restrict anyone from accessing the account after your death, in which case, only a court order will grant access to the account. Furthermore, pursuant to the Act, unless your will or trust includes specific language authorizing your executor to have access to the content of communications, the service provider will not allow access to such communications in order to protect your privacy.
What steps should you take in reference to your digital assets?
The first step is to sit down and list all of your digital assets and determine who will receive those assets or have access to those accounts when you die. You should then consult with an attorney to prepare your will and/or trust, making sure to discuss the type of digital assets you own and who you wish to leave them to after your death, including the content of communications. If you want your executor to have access to your communications, you must include that specific authorization in your will. It is also prudent to expressly state whether that authority is for complete access or limited in nature. You should also check with the specific service providers’ terms of service regarding access to digital assets upon the death of the account owner.
Next, you should record all of the login and password information to access those assets and store it in a safe place. Ideally, that information would be stored with your estate planning documents or somewhere else that is accessible to your executor, spouse, or other loved one. Keep in mind that although they may have the login information, that is not the only requirement to access those accounts. There are federal and state laws that restrict access for identify theft and fraud prevention, and service providers have their own terms of service that may prevent access. However, taking the steps outlined here will help to ensure that your heirs will be able to access and receive your digital assets after your death.
