January 1, 2020

Estate Planning for the Digital Age

By Jennifer L. Fulton, Esquire


While often overlooked, most people today have “digital” assets that should be reviewed upon death.  These digital assets could include email and social media accounts, online photo storage, online portals to health and financial information, frequent flyer miles and credit card points, streaming services, and even cryptocurrency.

But why bother accessing the digital information?  First, some digital information can be monetized.  Frequent flyer miles and credit card points, depending on the company’s terms of service, may be an estate asset.  Likewise, cryptocurrency could be exchanged for fiat currency (such as the US Dollar) and passed to the beneficiaries.   Online photos may have sentimental value. An email may be important proof in a lawsuit.  If bills are received and paid online, the personal representative will want online access.  Abandoned social media accounts or streaming services can be targeted by abuse for hackers.  Conversely, some social media platforms, like FaceBook, allow you to choose a legacy contact to set up a memorial page when you die.

Assuming your personal representative knows what your digital assets are, does he know how to access them?  While most states have now passed the Uniform Fiduciary Access to Digital Assets Act (“UFADAA”), the language in this act balances the privacy of the decedent against the need to access digital information, and, short of the decedent giving explicit permission through a legal document or custodian online tool to a fiduciary, the information available to the fiduciary is not always sufficient.   Your nominated personal representative, trustee and attorney-in-fact should have explicit permission to access your digital assets in your estate planning documents, to ensure they can gain the level of access needed.  Otherwise, they may get only a catalogue of your emails, and not the content.

The best practice is to create a repository for a list of all digital assets, provide password information and instructions to your personal representative or trustee for each digital asset, stating what you want done. If your asset can be monetized, it will need to be included in your probate estate (assuming it is not in trust), and it will need to be included in your gross estate for estate tax purposes.   If you own cryptocurrency, the secrecy surrounding ownership is so tight that you must leave very complete information for your personal representative.  This includes the type of cryptocurrency, how much you own, where you purchased it, all the step-by-step information needed to access it (including keywords and passwords), and the location of a digital wallet or thumb drive in which a back-up may be kept.  This information should be kept in a safe place, such as a safe deposit box, in your attorney’s vault, or in an online vault (for which you must provide them the entrance information), and you should choose your fiduciaries carefully.

Don’t leave your loved ones wondering: “What’s in your digital wallet?” Check with your attorney to see if your are sufficiently prepared for handling your digital assets upon your death.

Jennifer L. Fulton, Esq. is Of Counsel at The Law Offices of Robin Bresky (www.breskylegal.com) focusing on Estate Planning, Probate, and Estate and Trust Administration. A member of the Florida Bar since 1996 with a Juris Doctor degree from Nova Southeastern University, Fulton works with clients to plan for the milestones of life (college, “adulting”, marriage, children, grandchildren, aging parents, pre- and post-divorce, loss of a spouse, aging, diminished mental capacity) and administration upon death. She can be reached at 561-994-6273 or EstatePlanning@BreskyLegal.com

This information is provided for general educational purposes and may not apply to your specific situation.  Please consult with an attorney before relying on this information.