Protecting Your Digital Assets

In a world where a great deal of our personal and financial information is stored online, it is vitally important for you to have a Digital Estate Plan so that your family can access your digital assets in the event of your disability or death.

Today, there is a new kind of asset class requiring attention when creating or revising your estate plan: digital assets. 

So what needs to happen in order to protect your Digital Estate Plan and your assets?

Let’s start by defining a digital asset. These assets generally include social media, email accounts, online subscription services, personal images (photos and videos) stored online, blogs, online businesses, cryptocurrency, websites, web domains, gaming accounts and gambling websites.

Signing up for any of these accounts involves a lengthy terms of service agreement (TOSA), which we very often scroll past without reading and click “Agree.” What we do not realize is our agreement is a legally-binding contract with the platform or service provider, agreeing to all of the terms they have created. Many of these TOSAs include provisions which state that when the original account owner passes, the company may terminate their account, regardless of the value of the digital property or the wishes of the owner.

Most states have begun to adopt legislation for the specific purpose of addressing Digital Estate Plan assets after the owner of such property has passed away. Generally speaking, the company will allow the decedent’s executor or personal representative access to digital assets. 

Unfortunately, many tech companies stand by their contracts wherein protection of the original owner’s privacy is often cited as the reason contents cannot be shared with another person. Even if the executor knows the username and password of the deceased account owner, they may find that the account and all of its contents have been deleted. In some cases, the executor may only find a small portion of the online information available or be accused of committing fraud by logging on and using the decedent’s username and password.

Big tech companies often take the position the data and accounts were owned by the original account owner. As a result, they have a responsibility to protect the owner’s privacy. Therefore, they are not legally permitted to share data or content. 

The headlines of surviving family members trying to retrieve family photos, or police departments attempting to get evidence, represent a small portion of many individuals trying to access their loved one’s digital property. There are also millions lost in cryptocurrency from actual owners who forget their keys, or owners who never shared information with their loved ones about accessing crypto wallets.

What can you do to protect your Digital Estate Plan?

Our legal advice regarding your Digital Estate Plan is to:

1. Appoint a Digital Executor in your Last Will and Testament

2.  Provide your Digital Executor with the necessary documents and information to properly access your digital assets

3.  Create an inventory of your valuable digital assets

4.  Consider using an online program to keep track of your digital assets in order to establish a record of your digital assets. If you create a spreadsheet on your computer, you should encrypt it. Otherwise, in today’s digital world, your digital assets can be hacked and stolen. 

5.  Keep your inventory of Digital Estate Plan assets up-to-date every time you change a password or username, as well as acquire new digital assets.

6.  Decide what you want to happen to each of your digital assets after your death. For example, do you want your Facebook account changed to a “memorialized” account for a period of time? Or would you prefer this type of account to be shut down, immediately?

7.  Certain digital platforms have a process for assigning an executor—however, to date, not many have adopted specific rules. Therefore, it is important for you to find out what the policies are for all of your digital accounts.

8.  Do not share any of your digital asset information in your Last Will and Testament. Since your Will becomes a public document after your passing when it is filed with the probate court, anyone can gain access to the contents of your Will, jeopardizing the content and security your valuable digital accounts. Therefore, we highly recommend that you protect your digital assets in the same way that you would protect any of your traditional financial assets.

While digital assets are a relatively new asset class, your digital assets deserve the same level of protection as all other valuable assets which comprise your personal estate.