Do You Know How to Protect Your Digital Legacy?

Over the past few decades, significant advances in technology have essentially revolutionized how we live, the way we learn and communicate, how we manage our health and finances, and much more.

However, the digital age has also ushered in complexity related to both ownership and eventual inheritance of your digital assets. Based on current U.S. laws, certain digital assets may be left to your heirs through your will, while others may not (more about that later). In this article, we define digital legacy and discuss several important aspects of safekeeping and ultimately transferring control of these valuable (but often overlooked) assets.

Defining your digital legacy

Your digital legacy is the electronic data that you’ll leave behind on the Internet and other data media when you pass away. It consists of your financial accounts, digital wallets, email accounts, online profiles on social networking sites, online rewards programs (e.g., airlines, credit cards and hotels), business accounts, cryptocurrencies and digital assets such as photos or music, among others.

You may only include digital assets that you own as part of your estate, and only if they have some type of monetary or other tangible value. Such assets could include funds held on an online payment platform like PayPal or an online store like Amazon, cryptocurrencies like Bitcoin, and digital content that you own (e.g., photos, music and other intellectual property) and store on your electronic devices.¹ If you hold digital assets such as a domain name or copyright, you might be able to transfer them to heirs through your will, but it’s best to consult with an attorney who can review the specific terms of your licensing agreements and determine whether transfers are permitted when you die. For the digital assets you own, you may name a beneficiary if you wish.

Who can access your digital accounts?

The Uniform Law Commission, a not-for-profit organization that provides states with nonpartisan draft legislation, has created the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). The terms of this act allow users to give consent for third-party access (in a will, for example) that overrides certain terms-of-service agreements and privacy policies. Because affirmative consent by the content owner is required, appropriate planning is necessary to facilitate access as desired. RUFADAA has been adopted by most states.² Under the RUFADAA, an executor may manage computer files, web domains and virtual currencies as part of your estate settlement unless you specify otherwise in your will. However, an executor generally cannot access your email or social media accounts and text messages unless you consent to it in your will or power of attorney document.³

Your spouse, children and other relatives may not be able to simply request access to your digital accounts. Unfortunately, rights to these accounts are scattered through a labyrinth of user agreements and federal and state laws, making access to them time consuming and complex at best. If you wish for certain family members to access specific digital assets and accounts, then you need to provide express direction in your will. Otherwise, prohibiting or limiting access to these digital assets and accounts may impede the full and proper settlement of your estate. Terms-of-service agreements, which are often not carefully read before granting consent, may prohibit third-party access, which includes fiduciaries, relatives and personal representatives or executors.

In addition, federal laws governing the unauthorized access of digital assets are usually focused on protecting privacy and combating identity theft, hacking and other forms of cybercrime. Therefore, even if a fiduciary possesses the username and password, they may not have the legal authority to use them and can run afoul of these laws if they attempt to gain digital access. Two-factor authentication, which uses a cell phone or email to authenticate a user, can make it virtually impossible to access some of the sites that the deceased had frequently visited.

Steps you can take now to protect your digital legacy

The first step is to create a comprehensive inventory of your digital assets. Since access to these accounts typically requires a password, you may want to consider using a digital password storage tool or creating a simple password diary of usernames, passwords and answers to secret questions.

You should secure and limit access to this digital inventory during your lifetime, but make sure your spouse, children, etc. know where it is and how to access the assets as a fiduciary. For example, Google has an online tool called Inactive Account Manager that allows users to indicate who may access their information upon official notification to Google of the user’s death.

Once you create your digital inventory, you’ll want to determine planning options available under applicable state law(s) and work with your estate planning attorney to add appropriate instructions to your will, trust or power of attorney. These instructions should include express permission for a fiduciary (Personal Representative/Executor, Successor Trustee) to either access or destroy certain digital assets, in order to secure your digital properties and help safeguard your estate. As technology continues to be increasingly prominent in our lives, you need a sound strategy to effectively manage and protect your digital assets.

¹ https://www.wills.com/articles/Provision-For-Digital-Assets-In-Your-Will
² https://www.uniformlaws.org/committees/community-home?communitykey=f7237fc4-74c2-4728-81c6-b39a91ecdf22
³ https://www.forbes.com/sites/bobcarlson/2024/06/19/smart-phones-email-other-digital-assets-and-your-estate-plan/