You may have heard the expression “whatever you put online is there forever.” That aphorism is true, but have you thought through what it means for your digital legacy and digital assets once you can no longer manage them? Modern estate planning has adapted to encompass the increasingly wide array of “Digital Assets” owned and “Digital Legacy” maintained by each of us in the digital age.

• Your “Digital Assets” include photos, videos, iCloud account, online banking accounts, cryptocurrency wallets, texts and instant messages, subscriptions, online home utility accounts, online subscriptions, documents or manuscripts, files, cloud storage, etc.
• Your “Digital Legacy” includes social media accounts (including professional accounts), email accounts, etc.

Recognizing and including instructions for your Digital Assets and the care of your Digital Legacy in the estate planning process is crucial. Proper planning can ensure that treasured photographs are accessible to your loved ones, prevent “ghost” social media accounts from lingering online, make winding up your affairs easier and less expensive for your executor or loved ones, and fundamentally ensure that your digital assets and presence continue to be aligned with your wishes.

Inventory

The first step to securing your digital legacy is to create a written inventory of your digital presence—you may be surprised by what you find! Creating a comprehensive digital inventory includes preparing a list of all your online accounts, documenting log-in credentials, and utilizing tools like password managers for organization. You might also include references to things like photo or video storage, online banking accounts, cryptocurrency wallets, home utility accounts, etc. Conducting regular updates to this inventory is crucial to ensure executors have clear access to manage and distribute your Digital Assets effectively.

Ensuring Protected But Accessible Account Access

Balancing privacy with accessibility is a key consideration in estate planning for Digital Assets. You may choose to include a document with written or typed account, password, security question and username information with your digital directive documents. Or you may wish to utilize newer technologies like encryption, secure storage, and digital password management services to protect sensitive log-in information while still ensuring executors can manage your Digital Assets. Some products, such as the Apple iOS system, even allow for special “Legacy Contact” passwords that can be provided to your executor.

In any event, ensure that the information necessary to access your accounts is stored with your estate planning documents and digital directive. Providing access to your account usernames and passwords in a safe but accessible manner will greatly assist your chosen representative or executor after your passing. This will help them manage your electronic affairs in accordance with your documented instructions. Be sure to update this information, particularly account information associated with your email address(es) if things change!

Prepare Your Digital Directive

Creating a digital directive outlining how you want your online accounts and digital content handled when you die is essential. You can include this digital directive in your tangible personal property memorandum or a separate instruction letter to your Executor. When preparing your Digital Directive, think about questions like the following:

• Should a cloud storage account containing treasured family photos continue to be maintained using assets from your estate until the photographs are transferred to family members? Who is responsible for conducting those transfers?
• What should happen to your social media accounts? Should your Executor act to promptly delete them? Or did you know that many social media sites offer the option of turning a social media account to a “legacy” or “memorial account,” which would maintain your online presence posthumously, offering features for memorialization or sometimes continued management. Perhaps you would prefer to take this route
• Who should have access to the contents of your email account, social media messages, or cell phone? Would you prefer that these items be turned over to a specific individual or loved one to be wound up as they see fit? Or would you prefer requests for information regarding these accounts or devices and access to Digital Assets on them be directed to your Executor who would provide limited access at their discretion?

Maintain a copy of your digital directive anywhere you maintain copies of your other estate planning documents, including at home and on file with your attorney’s office.

Uniform Fiduciary Access to Digital Assets Act in Virginia

Virginia has passed the Uniform Fiduciary Access to Digital Assets Act (UFADAA), allowing fiduciaries to manage digital property such as computer files, web domains, and virtual currency. However, UFADAA restricts a fiduciary’s access to electronic communications such as email, text messages, and social media accounts unless the user consented to such access in a will, trust, power of attorney, or other written record. Therefore, it is important to ensure that you provide adequate permissions to your appointed person to access your email and social media accounts in your estate planning documentation if you want such accounts to be updated, for example, to reflect that you are deceased. UFADAA applies to a fiduciary acting under any will, trust, or power of attorney executed or created in Virginia.

Prudent estate planning for your digital legacy and Digital Assets involves inventorying, preserving, and ensuring access to your online accounts and assets so that they can be appropriately managed and distributed by your Executor. By integrating these guidelines into your estate planning, you can ensure peace of mind that your digital legacy is secure and aligned with your wishes. We have created a downloadable and printable guide to help.

For personalized guidance and expert assistance in securing digital legacies, contact Pohlman Law Group PLC, specializing in estate and probate law, to navigate the intricacies of digital asset management.