The digital age has ushered in complexity related to both ownership and eventual inheritance of your digital assets. Based on current U.S. laws, your digital assets cannot be left to your heirs through your will. What does this mean, and what can you do to protect your digital legacy? In this article, we define digital legacy and discuss several important aspects of safekeeping and ultimately transferring control of these valuable assets.
Defining Your Digital Legacy
Your digital legacy is the electronic data that you will leave behind on the Internet and other data media when you pass away. It consists of your financial accounts, email accounts, online profiles on social networking sites, online rewards programs (e.g., airlines, credit cards, and hotels), business accounts, cryptocurrencies, and digital assets such as photos or music, among others.
Who Can Access Your Digital Accounts
Your spouse, children and other relatives may not be able to simply ask for access to your digital accounts. Unfortunately, rights to these accounts are scattered through a web of user agreements and federal and state laws, making access to them time-consuming and complex at best.
Terms-of-service agreements, which are often not carefully read, may prohibit third-party access, which includes fiduciaries, relatives, and personal representatives. In addition, federal laws governing the unauthorized access of digital assets are usually focused on protecting privacy and combating hacking and identity theft. Therefore, even if a fiduciary has the username and password, he or she may not have the legal authority to use them and can run afoul of these laws. Two-factor authentication, which uses a cell phone or email to authenticate a user, can make it virtually impossible to access some sites that a decedent frequently visited.
Recent Developments May Help Your Heirs
The Uniform Law Commission, a not-for-profit organization that provides states with nonpartisan draft legislation, has promulgated the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). The terms of this act allow users to give consent for third party access (in a will, for example) that overrides certain terms-of-service agreements. Because affirmative consent by the content owner is required, appropriate planning is necessary. RUFADAA has been adopted by 41 states, and four more states are considering (as of April 2020).
Steps You Can Take Now to Protect Your Digital Legacy
The first step is to create an inventory of your digital assets. Since access to these accounts typically requires a password, you may want to consider using a digital password storage tool or creating a simple password diary of usernames, passwords, and answers to secret questions.
You should limit access to this digital inventory during your lifetime, but make sure your spouse, children, etc. know where it is and how to access the assets as a fiduciary. For example, Google has an online tool called Inactive Account Manager that allows users to indicate who may access their information upon Google’s notification of the user’s death.
Once you create your digital inventory, you will want to determine planning options available under applicable state law(s) and work with your estate planning attorney to add appropriate instructions to your will, trust, or power of attorney. These instructions should include express permission for a fiduciary (Personal Representative, Successor Trustee) to either access or destroy certain digital assets.
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