Benjamin Katz, Esq. P.C.

In our increasingly digital world, it’s essential to consider the fate of your digital assets when planning for the future. From emails and online accounts to cryptocurrency and digital files, these assets hold both financial and sentimental value. However, without proper planning, your loved ones may face significant challenges in accessing and managing these assets if you become mentally incapacitated or after you’re gone. That’s where a digital estate plan comes into play. By working with an estate planning lawyer to create a comprehensive digital asset estate plan, you can ensure that your digital assets are protected and transferred smoothly to your family. 

 

First, let’s discuss what digital assets include:

 

• Bitcoin and Cryptocurrency
• Non-fungible tokens (NFTs)
• Emails
• Cell phone files
• Digital music files and photos
• Domain names
• Funds kept in online accounts, such as PayPal, Etsy and Amazon
• Frequent flyer miles
• Blogs and other online published works
• Monetized video channels actively earning advertising revenue
• Online investment portfolios and wallets

 

Since digital assets are considered personal property, general language in a Will or Trust may be sufficient to give access to someone you designate as an agent or fiduciary.  Some companies and services may also allow you to designate beneficiaries.  However, there are many issues with those methods and it may be unwieldy to deal with each asset individually rather than addressing them all at once.

 

For example, a Will does not become effective until it is probated by the Court.  That process will likely take several months.  Similarly, if you simply designate someone as a beneficiary, they may have the right to manage an account but not necessarily the right to its content.  But what happens if you are not dead.  If you become seriously ill or are unable to make decisions for yourself, what happens then?  Even if you have a Power of Attorney in place, without specific language, your agent may not be able to access your digital assets.  There must be specific reference in estate-planning documents that allows access to the content in the account.

 

Some companies like Facebook and Google do allow users to choose how their accounts should be treated after their death. However, most companies will point to their user agreements when confronted with requests for access to accounts.  Do you know what your user agreements say? — Probably not.

 

Even if you have an estate plan, if you fail to provide a list of passwords kept in a secure location, your loved ones will be unable to gain access to the accounts even if they have the power to do so.   

A properly prepared estate plan which includes appropriate language in your Power of Attorney, Trust Agreement, and/or Will as well as a list of user IDs and passwords kept in a safe place avoids most of the problems mentioned and will override user agreements signed with companies maintaining your assets.    

 

Benjamin Katz provides compassionate, sound legal estate planning that includes digital asset planning. To meet with a lawyer that prioritizes developing longstanding client relationships, contact our office today for a consultation.