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Estate Planning Considerations for Your Digital Assets

Your Complete Guide to Estate Planning – CHAPTER 6

As the digital age advances and more elements of our lives move online, a trending question in modern estate planning is how to manage an individual’s intangible, electronic assets like their web presence and contents of various online accounts once they have passed away.

It’s true that some of these so-called digital assets can pass through your last will to your family members and other heirs, but there are many more that you don’t actually own the rights to. Yet, these other types of accounts still often need to be handled in some way—archived, deactivated, deleted—so that data doesn’t end up in the wrong hands.

Today’s post highlights a few things you need to think about your digital life as you work through the entire estate planning process covered in our ongoing blog series, Your Complete Guide to Estate Planning.

What are Digital Assets?

When it comes to things that qualify as your digital assets, the list is long and varied—from photos on your phone to marketplace (eBay, Etsy) accounts used to buy and sell merchandise to your social media profiles. If it can be defined as an electronic record that requires login credentials and/or a “right to use,” it’s a digital asset.

Which digital assets can pass through your will?

As previously mentioned, not all digital assets are totally yours to grant to others in your last will. Email accounts and social media profiles—no matter how long you’ve had these in your name and feel that they’re part of your identity—are prime examples of digital assets that do not actually belong to you.

However, anything that’s worth real money can generally be transferred to heirs. Things like:

  • Balances in online payment accounts such as PayPal, Venmo, and the like
  • Money owed to you by an online marketplace for items you’ve sold via their service
  • Cryptocurrencies like Bitcoin and others
  • Music, video, and photo files that you own outright (as opposed to those you might stream through a subscription service, which are not yours to transfer)

Why Include Digital Assets in Your Estate Plan?

Especially if you’re a digital content creator, artist, or internet influencer, you need to make sure your work is appropriately archived, continued on, or doesn’t simply fade into obscurity, depending on your wishes. Even if you’re a typical technology user—who, as of 2016, had about 90 online accounts according to tech experts—you might be concerned about photos, videos, and other files with a monetary or sentimental value stored on your phone, computer, or in accounts “in the cloud.”

Do you want these often irreplaceable digital items to disappear when you’re gone?

Adding Your Digital Assets to Your Estate Plan

As we mentioned, not all of your digital assets technically belong to you, and so you cannot pass every online account onto your family members/heirs. That said, you still need to plan for the deactivation of things like social media profiles or subscription services like Netflix, iCloud, and others.

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And this is where things can get a bit legally tricky. Since 2015, the Uniform Law Commission’s Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) has established how fiduciaries—executors, estate administrators, etc.—can gain access to digital accounts they do not actually own without being charged with hacking. However, these laws have not yet been passed by every state, and Pennsylvania is one of the holdouts. (Legislation was introduced earlier this year for action during the 2019-2020 regular session of the Pennsylvania General Assembly, but it has not yet been enacted.)

Long story short? Planning your estate in PA really requires the assistance of a knowledgeable probate and estates attorney to ensure that all of your digital assets are handled correctly and lawfully.

How to Get Started

Before you call a lawyer about adding provisions for your digital assets to a new or existing estate plan, there are a few things you can do to prepare.

1. Make a list of all essential online accounts

This can actually be quite time-consuming if you have many subscriptions or depend on the internet to accomplish much of your daily work. To help jog your memory, look at browser bookmarks, apps on your phone, or a listing of login credentials (usernames and passwords) that you likely have stored either physically or within a digital password manager application (like Apple’s Keychain or other third-party programs).

2. Think about who should have access to all or some of your accounts

As mentioned above, our state law in PA currently does not address fiduciary access to a deceased person’s accounts, but it’s wise to have some idea about who you can entrust your digital profiles to.

3. Determine who your digital beneficiaries are

When you are no longer here, who should receive things like your owned digital music files and photos stored on your phone? Additionally, don’t forget to think about the money you may have in your PayPal account or proceeds from your successful Etsy store—how should that be handled and distributed?

Call Us for Help With Any Aspects of Estate Planning

MHG can provide the reliable guidance you need when you’re feeling confused or overwhelmed with any parts of the estate planning process, including how to account for your digital assets in your last will and testament.

Indeed, the law surrounding access to digital accounts by individuals other than the named user is evolving and changing all the time, and you shouldn’t attempt to keep up with it all on your own. Get in touch with our dedicated estate planning attorneys to be sure all of your goals are met when leaving your legacy.

This blog is being published for educational purposes only as well as to provide general information and a basic understanding of the law, not to provide specific legal advice. By entering this site you understand that there is no attorney client relationship between you and the publisher. This site should never be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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