Cummings & Lockwood Estate Planning FAQs
Digital Assets in the Context of Estate Planning
Digital assets include photos and videos to music, whether on devices or in the cloud, as well as email accounts, social networking accounts, internet domain names, blogs, online gaming items, client lists and other electronic files. According to a market research survey conducted by McAfee in 2011, “people placed an average value of $37,438 on the digital assets they owned at the time.” However, in its 2023 article, McAfee noted that “with the growth of streaming services, digital currency, cloud storage, and more in the past decade, that figure feels conservative."
There are millions of internet-based accounts that belong to decedents. Some internet service providers (ISPs) have explicit policies on what will happen when an individual dies, whereas others do not. Even where ISPs include their policies in the terms of service agreements, most consumers only click through these agreements without a thought. Historically, few laws exist on the rights of fiduciaries over digital assets. Federal law, enacted more than three decades ago, imposes criminal penalties and possibly civil liability for the unauthorized access of computer hardware, devices and stored data.
In July 2015, the National Conference of Commissioners on Uniform State Laws revised a model law, referred to as the “Revised Uniform Fiduciary Access to Digital Assets Act” (RUFADAA), to help states enact uniform legislation nationwide. At present, 47 states have enacted this uniform Act that allows a fiduciary to “step into the shoes” of the decedent. What a fiduciary may access depends upon the type of information sought and what the decedent authorized during life. Pursuant to the uniform Act, a fiduciary may access a catalog of “non-content” information (i.e., the outside of the envelope) without the express prior consent of the decedent. However, to grant access to “content” information upon death (e.g., the letter inside the envelope), the user/decedent has options:
- First, the user may use the ISP’s online tool to provide direction to the fiduciary, which will supersede a will, trust or power of attorney.
- Second, in the absence of the online tool, the user may provide a written direction in a will, trust or power of attorney.
- Finally, if there is no written direction, the ISP’s terms of service agreement controls.
- If the ISP’s terms of service are silent about fiduciary access, the default rules of RUFADAA apply.
- Logs of email communications, including email addresses of senders and recipients and date/time sent or received.
- Catalogs of photo or music titles
- The subject line and body of emails, texts and other messages between the user and private parties.
- Digital photos and videos stored in a cloud-based account.
- Bitcoin and other virtual currency accounts.
- Facebook’s Legacy Contact. Facebook permits the legacy contact to write a pinned post for the decedent’s profile, respond to new friend requests, update the profile picture, and download an archived copy of what the decedent posted on Facebook. To access more, such as messages, the decedent would need to have specified in a will or trust.
- Google’s Inactive Account Manager. Google permits a user to name an individual to have access to his or her Google account information, with the option to close the account and/or obtain data from the account (including Gmail, Google Photos, YouTube, Google+, Google Drive, etc.) with a court order.
- Locate computers, smartphones and similar devices, backup and flash drives, and online storage and accounts.
- Identify digital assets, accounts, and information.
- Access them as permitted by law and discussed above.
- Value them for inventory, tax and distribution purposes.
- Protect and preserve them. For example, if the ownership of a domain name is not maintained and expires, the domain is suspended for two months, then put up for auction.
- Retain knowledgeable, technical help.
- Transfer them to the intended beneficiaries.