In today’s digital age, our lives are increasingly documented and managed online, leading to the accumulation of significant digital assets and personal information across various digital spaces. While traditional estate planning primarily addresses the distribution of physical assets like houses, cars, and family heirlooms, digital assets — such as domain names, photos, emails, and social media profiles – hold equal importance. These digital properties contribute to your legacy, but if your estate plan doesn’t account for them properly, your heirs may suddenly find themselves unable to access your assets and critical information.
The Same Rules Apply
Without a clear directive, the process of accessing a deceased loved one’s digital assets can be fraught with complexity and legal hurdles. In general, there are four main obstacles faced by family members in cases like these: passwords, data encryption, criminal laws, and data privacy laws.
Perhaps the most immediate and straightforward barrier is the use of passwords. Many digital assets and accounts are protected by passwords and without the correct ones, accessing assets can be challenging or impossible. This includes everything from social media accounts to online banking and email. Often, the deceased may not have shared their passwords or the passwords might be difficult to recover due to security measures.
Although similar to passwords, data encryption is a more robust layer of protection. When data is encrypted, it is converted into a code that cannot be easily understood by unauthorized people. While encryption is excellent for security, it poses a significant hurdle for family members trying to access important files or information that the deceased has encrypted. Even if you have the password to a device or account, encryption can prevent access unless you also have the decryption key or method.
Furthermore, various jurisdictions have laws that could complicate access to digital assets. For instance, unauthorized access to computer systems and digital accounts can be considered a criminal offense under laws like the Computer Fraud and Abuse Act in the United States. These laws are designed to protect against hacking and unauthorized access, meaning well-intentioned family members could inadvertently run afoul of criminal laws while attempting to access the deceased’s digital assets.
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Our Philosophy
Estate planning goes beyond money, and includes intellectual, spiritual and human wealth.
Privacy laws are designed to protect individuals’ personal information from unauthorized access and misuse. However, these laws can also limit access to digital assets after someone’s death. For example, the General Data Protection Regulation (GDPR) in the European Union places strict controls on how personal data can be accessed and used. These laws mean that service providers might be unable to share information with the deceased’s family members without violating privacy regulations.
To seamlessly transfer your digital legacy after your passing, include your digital assets and personal information in your estate planning. The digital realm is vast and complex, but with careful planning and organization, you can greatly simplify the process for those you leave behind. Here are some basic steps you can take:
- Make a list of all digital assets and important information. The first step is to create a comprehensive inventory of your digital assets. This list should include everything from social media accounts, online banking and investment accounts to digital photo libraries and email accounts. Don’t forget about any websites or blogs you own, digital music, cryptocurrency, and even digital avatars that may have monetary value. Alongside each asset, note down how to access them — this could include usernames, passwords, and any other necessary details like security questions or PIN codes.
- Assess the value of your digital assets vs physical assets. Not all digital assets have monetary value, but many hold significant sentimental value or personal importance. Assess which assets are valuable and in what way and consider what you would like to happen to them. For some, like online photos, you might want to ensure they are passed on. For others, like certain social media accounts, you might prefer they are removed or memorialized according to the platform’s policies.
- Storing digital assets in the cloud. While cloud storage offers convenience and accessibility, it’s also subject to terms of service that may make it difficult for heirs to access your data after your death. Ensure that any important information, photos, videos, or documents stored in a protected, redundant cloud and that a trusted individual has access to your cloud storage credentials.
- Work with a qualified estate planning attorney who has experience in digital asset protection. Digital estate planning is an evolving area of law, therefore it’s important to work with someone who understands its complexities. A qualified estate planning attorney can help you navigate the legal landscape of digital asset inheritance, ensuring what you own is appropriately included in your will or trust. They can provide advice on how to legally transfer access to your digital assets, and ensure your wishes are followed.
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Who Gets Access?
Digital estate planning is still relatively new, and the relevant laws change frequently. Who gets access to your digital treasures is especially important in this regard, whether it’s your children, friends, or other family members.
Furthermore, special considerations, such as estate planning for blended families, can complicate matters. In addition to the executor of your general estate, you may want to appoint a special executor who has the experience to handle your digital estate. By addressing these estate planning considerations for digital assets, and more, you’re taking a step forward towards safeguarding your legacy for the future.
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