Increasingly, Americans conduct their personal business online. A 2017 survey done for the American Bankers Association revealed that 40% of bank customers primarily managed their accounts from their computers, and another 26% from their mobile devices.
While many of those digitally managed accounts are with traditional banks and provide another means of access to a trustee or estate administrator, many assets are only—or, at least, naturally and primarily—accessible online or through an app. Some examples include online-only bank accounts, online investment accounts, and cryptocurrency. And, of course, not all assets are financial. Loss of access to social media accounts, online photo storage and other cloud-based storage, and more can mean the loss of treasured family photos and other content.
In short, it’s in the best interests of your heirs and beneficiaries to take steps to protect your digital assets and account information and to make them readily accessible to your personal representative or designated trustee. Unfortunately, many people don’t think to make arrangements for digital access, and others don’t know how to manage non-tangible assets.
An estate planning attorney experienced in management of digital assets can be your best resource when you’re ready to create a plan.
Providing for and Protecting Digital Assets
What are Digital Assets?
The term “digital assets” is used somewhat loosely in estate planning at this stage, as the digital world is shifting and evolving. Not everything addressed here falls within the strict definition of a digital asset—the common thread is the need for digital access to effectively manage and protect the underlying assets.
The list of possibilities is nearly endless, but these examples should get you thinking about your own digital assets and prepared to take inventory:
- Any bank accounts you manage online
- Email accounts
- PayPal and other online financial accounts
- Any credit card accounts and other debts that are managed electronically
- Digital photo albums and other online storage
- Cryptocurrency
- Social media accounts
- The app that sweeps your pennies into an online savings account when you make a purchase
It’s important to recognize that even if these apps and accounts don’t hold assets themselves, they may present a risk if not managed properly. For example, you may not keep money in your PayPal account, but the account is likely linked to your bank account, a credit card account, or both. Thus, you’ll want someone to be in a position to shut down that account to protect other assets.
Steps Toward Management of Digital Assets in Estate Planning
There is currently no federal or universally applicable law regarding access to digital assets after the death of the account holder. Florida does have a law regarding fiduciary access to digital assets, but the statute relies heavily on the direction of the account holder.
- Take inventory. Make a list of all of your online accounts and how you access them. Your personal representative or trustee can’t take control of assets he or she doesn’t know exist, or can’t find. In many cases, this will mean more than just providing a user name and password. You may need to include the URL where you log in, the name of an app on your phone, or some other direction for locating the account. Put this detailed list in a secure location that will be revealed to your executor or trustee, and make sure you keep it up to date.
- Determine what you want to happen to accounts after your passing. The answer to this question may differ depending on the account, just as it does for various offline assets. For example, you may want to allow your personal representative access to the email account attached to your other online accounts and used for password retrieval, but may not want to pass along access to messages you exchanged through a dating site.
- Use the tool the site provides, if possible. Some social media sites and online platforms have an internal tool that allows users to designate someone to manage the account after their death, or to instruct that the account be deleted. Check your online accounts for that option, and take advantage of it where feasible. If you aren’t sure whether you made selections when you signed up for the account, check your existing accounts to ensure that your instructions reflect your current wishes.
- Provide instructions in your will or trust documents. This may be a general instruction regarding management of digital assets, or may be tailored to the particular assets and accounts. In this regard, digital assets are just like personal property—you have the option of including it in a catch-all bequest or leaving specific items to specific people.
Discuss Your Digital Assets with Your Estate Planning Attorney
Most people aren’t thinking about digital assets when they sit down to create an estate plan, but those assets should be a part of the Florida estate planning process, and are likely to become more important over time. Make sure you discuss digital assets with your estate lawyer or the attorney drafting your trust.
FULL DISCLOSURE
This blog post only reflects my personal views in my individual capacity. It does not necessarily represent the views of my law firm or my past clients, and is not sponsored or endorsed by them. The case-specific information contained in this blog post is based solely on opinion, and is provided only for educational purposes and is not intended to provide specific legal advice. No representation is made about the accuracy of the information posted on this blog site. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.
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