Have you stopped to consider just how much content you create online? These days it is nearly impossible not to interact with some form of digital media. Now, consider what will happen to all that content when you are gone.

The Rise of the “Digitoral Age”

I think most people recognize the importance of keeping track of  and protecting banking or investment accounts. For some business owners, access to digital accounts may be a crucial part of continuing the activities of their business. While many, if not all, online services require users to establish accounts and protect those accounts with a password or other authentication, such actions are often passed off as simply the terms of getting the benefits of the service.

It is important to note some implications raised by the Revised Uniform Fiduciary Access to Digital Assets Act (2015), or RUFADAA. According to the Act, almost anything a person can access via a digital device is considered a “digital asset.” This includes the contents of e-mail, blogs posted to a website, photos in the cloud, online payment services like PayPal, and even online subscriptions.

Why does it matter? Certainly privacy and security concerns have become more prominent as more of our personal information is stored online and cyber-criminals have become much more sophisticated. The Act, however, raises two significant points beyond privacy concerns, namely:

1. Digital assets as defined in the Act are recognized as property “with a corresponding right to own, manage and conserve in much the same manner as with real or tangible personal property.”

2. The Act applies to agents, fiduciaries, personal representatives of an estate and court-appointed guardians or conservators.

Understanding the Implications

Any information stored on a computer or other digital device (i.e., smartphone, tablet, e-book reader), content uploaded to a website, and any other “rights in digital property,” are now all considered as much a part of a person’s estate as a house or investments.

Digital assets need to be incorporated into estate planning just as one must plan for transferring ownership to their home, or how money or other personal assets will be distributed on their death. Failure to do so could mean that any information in such digital accounts may remain inaccessible to those responsible for distributing the assets of an estate, and thus inaccessible to family members and other beneficiaries.

Many Terms of Service or “user agreements” have provisions that could make the service inaccessible to others upon the death of the user. The RUFADAA provides that if a user’s estate planning documents, such as a will or trust agreement, specifically grants a fiduciary the power to access such digital assets, we’ve been told that such permission typically overrules the Terms of Service Agreement.

Even if a fiduciary or personal representative is allowed access, however, there are still rules governing the degree of access allowed. It should also be stated that under the Act, authority to access a digital asset is not to be construed as authority to make transactions with the underlying asset (such as money in a bank account).

Planning for Digital Assets

More and more digital assets are becoming an important part of estates for both financial and sentimental reasons. It is worth taking time to consider what digital assets you have, and what your intentions are for those assets. Here are some steps to help you get started:

• Take an inventory of your digital assets. Keep a master list of such assets, including the name of the asset or provider (bank, Facebook, Google, etc.) and the username and/or password associated with it. Protect the list!
• Make a note next to each asset in the list, or at least give some thought to which assets you want to grant third-party access and which you would rather keep private.
• Consider speaking with an attorney about making revisions to your estate planning documents to account for pertinent digital assets.
• Make a plan for storing the access information. You may consider bringing them together in a digital vault like the one we make available to our clients. Regardless of how you keep track of them, make sure the people appointed under a power of attorney, last will and testament, and other estate planning documents know which digital assets they are to access and how.

This  quip from comedian Jim Gaffigan proves more relevant with every upload or share on social media: “We used to have boxes of photos in our closets; now it’s just old computers.”