Digital Asset Planning

Innovation and technology have played a significant role in our daily lives. New gadgets are regularly introduced with the goal of making our lives easier and more manageable. In the last decade we’ve gone from the introduction of tablets to being able to ask our kitchen appliances to perform tasks – which they will then actually do! Simply put, a Digital Asset is content that is stored in digital form. Facebook, Instagram, and Amazon Photos are all examples of Digital Assets.

When the Covid-19 pandemic hit, our reliance on technology increased tenfold. Most of us were forced to adapt to a greater use of technology in some form. We have had to pivot from working in an office to working from home. Parents of school-aged children have had to learn to manage virtual learning. Businesses have had to come up with inventive ways to keep the business going and implement a stronger emphasis on a virtual platform. In summary, we are more reliant than ever on technology to help us adapt to the changing circumstances in our lives.

The speed at which the digital world becomes increasingly incorporated into our daily routines, however, far exceeds the rate at which corresponding regulations can be put into place. As a result, legislation has been slow to keep up across a wide array of areas. Estate planning is no exception. In fact, just a few years ago laws were enacted addressing “digital assets” in estate planning.

In September, 2016, the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) was signed into New York Law. The overall takeaway from RUFADAA is that a person can now appoint a Fiduciary (Executor or Trustee) to manage their digital assets after they pass.

The term “digital asset” encompasses a wide range of electronic information. In fact, it encompasses most forms of electronic information. Some examples are:

• Email accounts (including individual emails);
• Social media profiles (Facebook, Instagram, Twitter, etc.);
• Blogs;
• Digital storage accounts including photo storage;
• Financial accounts (e.g. online banking, PayPal, Venmo, etc.); and
• Personal accounts (e.g. Amazon, Shutterfly, eBay, iTunes, etc.).

Upon first glance it may seem somewhat trivial to appoint someone to manage things like one’s blog, or iTunes account. But in order to illustrate the necessity for including digital assets in an estate plan, as well as the risks of failing to maintain an up-to-date and complete plan, let’s consider two hypothetical couples in the following three scenarios.

A husband recently and unexpectedly lost his wife. Although the couple did some estate planning a few years prior, their documents did not contain the necessary language regarding digital assets. As the husband grieved his loss, he remembered a loving email his wife had sent to him that he wanted to re-read. He searched his inbox to no avail, but fortunately, the spouses had each kept a written notebook of their login information for online accounts. He located the notebook, retrieved the login information for his deceased wife’s personal email account, found and re-sent the message to himself, and immediately logged back out of her account. No harm no foul right? Unfortunately, the husband’s actions in accessing his late wife’s e-mail account was illegal.

Without the inclusion of digital assets as a part of the wife’s written estate plan, the husband did not have the legal authority to access his late wife’s personal email account, and in doing so, violated both State (RUFADAA) and Federal (Computer Fraud and Abuse Act; Electronic Communications Privacy Act) laws. Despite the fact that his intent was innocent, he was the original recipient of the email and he was the appointed Executor of her estate, none of that matters. The omission of the requisite language from her documents could leave the husband facing unimaginable consequences.

The second couple had been married for over 25 years. Although the wife had a general knowledge of the family’s finances, her husband was the one who managed the banking and bill paying, which he did primarily online. Fortunately, this couple’s planning documents did address digital assets, and when the husband died, she had explicit legal authority to access all of his online accounts. The problem, however, was that she had no idea what his usernames or passwords were. She attempted to reset passwords, but the reset links were sent to his personal email account which she could not access, despite having the full legal authority to do so. Even if she had been able to access the reset links, she would have been impeded by obscure security questions, like the name of his first grade teacher or the make and model of a car he had years before they met.

Although their documents included the requisite language regarding access to digital assets, their planning stalled there. As a result, in order to gain access to the accounts, she had the time-consuming task of contacting each company and jumping through their various hoops. All she wanted to do was to continue paying the bills and keep up with household responsibilities, as well as manage the added duties as Executrix of her husband’s estate.

In the final scenario, we revisit the first couple where the husband illegally accessed his deceased wife’s email account in order to resend himself an email. This time, however, the couple’s estate planning documents DID include language pertaining to digital assets, and as before, they had each kept a written record of their login information for their respective online accounts. In this scenario, the husband had both the authority and the capability to access all of his deceased wife’s online accounts. Great! ....but what was he supposed to do with them? Should he close her email account? Should he download and save information and photos somewhere before deleting any accounts? What about her social media pages? Should he close them or should he leave them active to afford friends and family the opportunity to continue to view her photos and leave condolences? What did he want to do? What would she have wanted him to do?

If only these two hypothetical couples had been aware of the importance of including digital assets in an estate plan, and understood that a complete plan extends beyond having particular language stated in their legal documents. In fact, a complete plan for the management of digital assets has three main components:

1. Language incorporated into executed legal planning documents;
2. Maintaining an up-to-date record of log-in information for all online accounts, including user names, passwords, security questions and answers; and
3. Clear indication of one’s preferences on how each account should be handled by one’s Fiduciary.

A few years ago, Burke & Casserly took a proactive approach and began to include digital asset language as a standard in every Power of Attorney, Last Will and Testament, and Trust Agreement for our clients. However, it is still up to the client to complete and maintain an up-to-date plan for digital assets. This will help avoid the unintentional and potentially catastrophic problems that our hypothetical couples faced and help ease the burden on one’s loved ones when it comes time for them to manage their affairs.

We all know how frustrating it is to forget usernames and/or passwords. Keeping a written record of login information will help save one’s own sanity and those who will be tasked with managing your digital assets in the future.

Jill Spooner is a Paralegal with the law firm of Burke & Casserly, P.C., 255 Washington Avenue Extension, Albany, NY 12205 (phone: 518-452-1961 and e-mail: jspooner@burkecasserly.com). The firm practice focuses in trusts and estates, elder law, guardianship, special needs planning, business formation and succession planning, and real estate.