What Digital Assets Should I Include in an Estate Plan?
An estate plan isn’t complete without considering your digital propertyBy Canaan Suitt, J.D. | Last updated on October 7, 2022
Use these links to jump to different sections:
- What Are Digital Assets?
- How To Add Digital Assets to an Estate Plan?
- Are There Digital Property Laws?
- Questions for an Estate Planning Attorney
“You want to consider all of your assets [in estate planning],” says Ohio estate planning attorney Jay E. Michael. “Whether the assets are digital… any asset needs to be addressed. Any and all.”
When planning your estate, your mind may go to physical property such as your house, car, cash, or jewelry.
It’s definitely important to make an estate plan for these types of assets. But what about your digital assets?
Digital estate planning is more important than ever as more parts of our lives are increasingly online, from financial accounts to family photos.
To ensure that all your assets are accounted for, your estate plan should include digital assets in addition to your more traditional assets.
But what are digital assets, and how do you make an estate plan for them?
This article will address those questions and help point you to legal help in planning your estate.
What Are Digital Assets?
Digital assets include:
- Digital hardware. This is anything on which digital information is stored, such as computers, hard drives, flash drives, smartphones, tablets, digital cameras, or other digital devices.
- Non-monetary digital assets. Photos, documents, videos, games, or music that you have stored digitally or in a cloud. These types of digital assets don’t have monetary value in themselves. However, they do have sentimental value and are often things you want to ensure are left to your loved ones and beneficiaries.
- Online accounts. You may have many online accounts for different aspects of your life, from finances to communication. Online accounts include:
- Email accounts
- Social media accounts
- Messaging accounts
- Online banking accounts
- Online credit card accounts
- Other online financial accounts, including investments and stocks
- Online marketplace accounts (such as Amazon)
- Online storage accounts (pictures, videos, music)
- Intellectual property in digital format. This could include logos, videos, or other artistic works you’ve created online such as music, pictures, and stories.
- Domain name. A domain name is the name of your website. It’s one of the main ways your website is identified and accessed.
- Cryptocurrency. Cryptocurrency (crypto) is any digital currency that uses a decentralized transaction verification and management system (blockchain) instead of a central banking authority. Cryptocurrencies are secured through cryptography or encryption (coding methods that make data inaccessible to everyone but the intended user). The most popular type of cryptocurrency is bitcoin.
- NFTs. NFT stands for “non-fungible token.” NFTs can be anything from images to music videos to games. They are digital assets created by taking a digital object (an image, video, etc.) and giving it an identifying code through encryption. The code is unique to that digital object and allows individuals to own that specific digital object. For example, instead of just viewing a picture of your favorite superhero, you can own that image by making it in an NFT. Like cryptocurrencies, NFTs are encoded on a blockchain. The similarities end there, however. Cryptocurrencies, like U.S. dollars or other currencies, can be exchanged for one another. For example, I can exchange my $10 bill for your two $5 bills. This ability to be exchanged is called “fungibility.” NFTs are not like money. They are unique items that can’t be exchanged for one another. This is why they’re called “non-fungible.”
- Accumulated points. You may have points through loyalty programs with hotels, airlines, etc.
How To Add Digital Assets to an Estate Plan?
In many ways, creating an estate plan for digital assets is like creating an estate plan for any other assets you own. Whether making a plan for your real estate or your cryptocurrency, you’ll want to:
- Inventory. Make a complete inventory of your assets.
- Beneficiaries. Decide how you want to distribute the assets and who your beneficiaries will be.
- Will. Create a last will and testament that specifies your wishes. If you already have a will addressing your other non-digital assets, you can add an amendment (called a codicil) that accounts for the digital assets.
- Appoint a digital fiduciary. When creating your will, appoint a digital fiduciary. “Digital fiduciary” is a broad term that could refer to two types of personal representative:
- Power of attorney. This is a person authorized to make decisions about your digital assets on your behalf if you become incapacitated. You can also appoint a power of attorney through a directive instead of a will.
- Digital executor. This is a person appointed to distribute digital assets as specified in a will after the person’s death.
- Make a list. Put your digital account information in an accessible, safe place. Make sure your digital fiduciary knows how to access the information when you die or are incapacitated. Include passwords, private keys/PINs, and any other account information that will be necessary for your wishes to be followed.
Are There Digital Property Laws?
There is currently no law at the federal level specifically concerned with digital fiduciary responsibilities.
However, there is a degree of uniformity concerning digital fiduciary duties thanks to the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA).
Legal experts with the Uniform Law Commission created this model law in 2015. Since its creation, RUFADAA has been adopted by nearly every state and the District of Columbia.
RUFADAA sets guidelines for digital fiduciaries in managing a deceased or incapacitated person’s digital assets.
In general, the law allows fiduciaries to access the deceased person’s digital assets and accounts as long as they are authorized to do so by an estate planning document.
Suppose a will or other estate document doesn’t explicitly grant access. However, the fiduciary thinks access is necessary to settle the estate. In that case, they can seek a court order to gain access or look at the service provider’s terms of service.
In addition to RUFADAA, other federal and state laws are relevant to the digital estate planning process. For example,
- Data privacy laws that protect your electronic communications
- Criminal laws that target identity theft and unauthorized access to your accounts
- Your state’s estate planning laws and probate process
Digital fiduciary duties can be complex. If you’ve been appointed a digital fiduciary, it’s a good idea to speak with an estate planning attorney about your role and the laws in your state governing it.
Questions for an Estate Planning Attorney
Consider speaking with an estate planning attorney if you’re trying to create an estate plan that covers your digital assets.
An attorney can assist you through the entire estate planning process, preparing legal documents like a will and directives and ensure nothing is left out.
Meeting with an estate planning lawyer is straightforward. Many lawyers provide free consultations for potential clients, allowing you to get legal advice about your situation and to decide if the attorney meets your needs.
To get the most out of a consultation, ask informed questions such as:
- What are your attorney’s fees and billing options?
- How do I figure out what my digital assets are?
- How do I make a list of my digital assets?
- How do I appoint a digital fiduciary?
- Which estate plan is best for me?
Look for an estate planning attorney in the Super Lawyers directory for legal help.
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