Digital Assets And Estate Planning|
In last month's newsletter, we discussed the issue of estate planning for
digital assets. We identified the kinds of assets which clients may have
online, including pictures, social media, bank accounts, and intellectual
property, and we discussed the difficulties in having a successor identify and
access those assets if something happens to their owner.
In this newsletter, we will discuss the current policies of some of the
common online account providers, and our approach to planning for digital
While many online account providers have no policy relating to deaths of
their users, some of them do. Here are some examples of the policies.
Facebook: A family member, upon providing a death certificate,
may have the deceased user's account closed or they can have
it "memorialized." This means that no one may log into the
account and make any changes, contact information is deleted,
and only confirmed friends may view the memorialized profile.
Gmail/Google: A family member may have the account deleted,
but may receive a copy of contents of the account prior to
deletion if certain requirements are met.
Yahoo! Mail: No access is granted to family members without
court approval, but the account may be closed by providing a
As you can see, sometimes there is a method by which your family can
access information. But if your named successor is not a family member, or if
the website has no policy in place, your successor will be unable to gain
control of your account.
Two-Step Approach to Planning for Digital Assets
The first step in estate planning for digital assets is keeping an accurate list
of online accounts you own, including usernames and passwords. We do
not recommend that you keep this list saved as a file on your computer,
since a virus or other malicious software on your computer could give a third
party access to all of your online accounts. This list could be kept in the
cloud using online file storage systems, but your successor would need to know how and where to find the information.
Instead, we recommend you create a paper list showing all of your online
accounts and all login information, including usernames, passwords and
answers to security questions. This list would be kept with your original
estate planning documents in a safe, and updated as necessary. Your
successor must be able to access this list if you are deceased or
The second step is naming someone in your estate planning documents
who will handle your digital assets (sometimes called a "digital trustee" or
"digital agent"). This person can be the same as your regular trustee and
agent, or he or she can be a family member or friend who is tech savvy and
someone you trust to access and distribute digital assets.
Providing for the Digital Trustee’s Authority
In order to name a digital agent and a digital trustee, and to give that person
the authority discussed above, you would need to execute a power of
attorney which specifically grants your agent authority over your digital
assets while you are living, as well as a trust instrument which gives your
trustee the necessary powers while you are living and after your death.
Digital asset information should not be put into your Will, since it becomes a
public document upon your death. While there is no guarantee that your
digital trustee's authority will be honored, we hope that as digital trustees
become more common, more websites will begin recognizing them and new
laws will be established acknowledging your successor's authority over your