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FAQ: How Can I Include My Digital Assets in My Estate Plan?

Although Americans generally tend to drag our feet when it comes to creating an estate plan, we are even worse when digital assets are involved. You may have planned for who will inherit your home, your car, your bank account, your family heirlooms, or other assets, while totally overlooking your digital assets. If your estate plan does not specifically address digital assets, your heirs may be unable to access those assets. Family photos and videos could be lost forever, or your Facebook or Instagram account could remain “open,” long after you are gone. 

We live in a digital world, which means most of us have digital assets. Perhaps you have avoided Facebook, Instagram, and Twitter, so think you have no digital assets, but digital assets include much, much more. Working with an experienced California estate planning attorney can ensure your digital assets are properly taken care of. Attorney Mark Gullotta understands the importance of addressing digital assets in your estate plan and can answer your questions while ensuring your digital assets become a part of your estate plan.


What are Digital Assets?

The photos stored on your smartphone are considered digital assets, as are the movies you stream from Netflix or Amazon Prime and even the documents you may have stored in the cloud. A digital asset is any content that is stored digitally. This could also include files containing text, emails, domain names, websites, social media accounts, photographs, videos, images, slide decks (PowerPoint presentations), and spreadsheets, as well as graphics, music (and other audio files), PDFs, and plain-text files (Notepad). 

Many digital assets, such as photographs, are difficult to place a value on because they are impossible to recreate. Almost all of us have some level of digital assets, and while we rarely think too deeply about those assets, if you were to die unexpectedly, would someone you trust be able to access your digital assets? Further, what if your will and all your instructions related to your death are stored on your computer—which is password-protected. Could someone access those important documents?


What are the Obstacles to Digital Access?

Legally speaking, digital property is much like other types of property because it can be left to a beneficiary via your estate plan. Yet, the laws associated with digital assets continue to evolve, largely due to the rapid changes in technology. This means that anyone other than the original owner can run into stumbling blocks when attempting to gain access to another’s digital assets, after that person’s death. The primary obstacles come in the form of:

  • Passwords
  • Data encryption
  • Criminal laws related to the access of private personal data, and
  • Data privacy laws.

In particular, state and federal criminal laws generally prohibit unauthorized access to a person’s computer system and private personal data. While these laws were put into place to protect consumers against identity theft and fraud, they can also create a virtually insurmountable obstacle for a family member to gain access to your digital assets following your death. Data privacy laws prevent online service providers from turning over your account without your legal consent. If you do not provide this legal consent in your estate plan, your heirs could be unable to gain access to your photographs, emails and information, and may be unable to lawfully close your social media accounts.


How Do I Address Digital Assets in My California Estate Plan?

Like all estate planning, addressing your digital assets is largely a matter of planning ahead. First, you should sit down and create a list of all your digital assets. Do not forget your online banking accounts, online stock accounts, PayPal account, social media accounts, domain names, intellectual property (copyrighted materials, trademarks or code you have written and own), and virtual currency. Keep this list in a secure location, with directions to chosen family members for accessing the list. Keep a list of your passwords in a separate location, with instructions on your digital asset list for accessing the passwords. A password management app can help simplify this process. 

Next, make sure you truly understand what you own. In some cases, you may have thought you purchased a digital asset, but only purchased a non-transferable license to use that digital asset. As an example of this, consider the music you purchase on iTunes. Whether you are aware of it or not, there are certain rules which go along with such an account, including limitations that restrict the number of times you can put the music on a CD. If you have digital assets stored in the cloud, consider backing them up on a storage device so they can be more easily accessed following your death. Finally, work closely with your California estate planning attorney to update your will, revocable living trusts, and powers of attorney, providing consent for providers to divulge the contents of your electronic accounts. If you really would not want a member of your family reading all your past e-mails, then do not provide a “blanket” authorization for access.


How Do You Want Your Digital Assets Handled?

Decide how you want each of your digital assets handled. You might want certain assets to simply be archived and saved, others to be erased or deleted, and still others to be transferred to family members, business colleagues, or friends. For each digital asset, you will want to note specifically how you want your digital executor to handle the asset. If you have digital assets that have monetary value, these digital assets might be handled in a different manner.


Is Your Digital Executor the Same as Your “Regular” Executor?

You will choose a person you trust to carry out all your wishes regarding your digital assets. You can choose a different digital executor from the executor of all your non-digital assets, and you might want to do so, depending on the extent of your digital assets, and how “sensitive” those digital assets are. It is important to note that naming a digital executor might not always be a legally binding designation, as the laws have not quite caught up to digital assets.


Where Should I Store My Digital Asset Information?

Information regarding sensitive digital accounts should be stored first with your estate planning attorney, then perhaps also with an online storage service, a trusted friend or family member, or in a locked file cabinet or safe (with instructions for a trusted friend or family member to access the file cabinet or safe). 


How Mark Gullotta Can Help with Your Digital Assets

As the law struggles to catch up with digital assets, it is extremely important you work closely with your California estate planning attorney to ensure your digital assets are properly taken care of following your death. Estate planning attorney Mark Gullotta can answer all your questions regarding your digital assets and can provide a much more predictable estate planning process overall. Mr. Gullotta takes a proactive approach to estate planning, which minimizes any surprises on your end while achieving the protection you desire for your loved ones. Contact the Law Office of Mark Gullotta today.

DISCLAIMER: The information provided in this document is not legal advice. No attorney-client relationship is created as a result of this presentation. The content is intended to be a general overview of the subject matter covered and is educational and informational only.