Window to the Law: Estate Planning for Your Digital Life

You probably already have a will or trust that distributes your real property and personal possessions when you die. But what about your digital assets? In this video, learn about a law that helps ensure someone has access to your social media, website, and other online accounts after you pass away.

Window to the Law: Estate Planning for Your Digital Life: Transcript

Most of us think about real property and personal possessions when we think about wills and estate plans. But what happens to your digital assets after your death?

As a real estate professional, you no doubt have an online presence: a website, social media accounts and maybe even a blog. It’s important that someone has access to all of these accounts so they can carry out your last wishes.

The Revised Uniform Fiduciary Access to Digital Assets Act or RUFADAA, pronounced like “You FADA,” grants a fiduciary—someone designated by you—the right to access your digital assets after your death. RUFADAA has been adopted in 43 states and the US Virgin Islands, and other states are considering the legislation or have incorporated aspects of the Act into their probate laws.

Before RUFADAA, it was difficult for fiduciaries to legally access the deceased’s accounts. Even if the fiduciary had the necessary login information, the Terms of Service could prohibit such access, making the fiduciary susceptible to hacking charges.

RUFADAA gives priority to online tools that you can use to designate who you want to access your account after your death. For example, Facebook allows users to designate a “legacy contact” with limited powers to update the account. Google allows users to name a “trusted contact” who will be notified if the account becomes inactive. A designation made through an online tool will supersede a designation made by a will, trust, power of attorney or other legal document.

If the custodian of a digital asset, like a Facebook or Google, does not offer an online tool, or you do not use the online tool, then RUFADAA provides that the digital assets owner’s legal documents dictate who may access the asset. Legal documents under RUFADAA include your will, trust, power of attorney, and possibly informal documents like a printed or electronically saved note.

If you do not provide direction through an online tool or a legal document, then the terms of service governing an account will control any posthumous access to your digital assets.

Keep in mind that the custodian of a digital asset can require proof of authority, a death certificate, and even a court order in certain circumstances, even if the fiduciary is properly named under RUFADAA.

Here’s how to get started with your digital asset estate plan.

  1. Make a list of all of the digital assets you own, personally and on behalf of your business. Be sure to include:
    1. Computer hardware including external hard drives and flash drives;
    2. Digital devices like smartphones and tablets;
    3. Electronically stored information such as emails, client lists and cloud-based storage accounts;
    4. Online accounts, including social media, subscriptions and even airline loyalty accounts; and
    5. Domain names and blogs you own.
  2. Find out what online tools are offered by your online accounts such as Facebook’s legacy contact and Google’s inactive account manager, and take advantage of them. 
  3. Sites like Dropbox and WordPress allow for multiple users on an account, so decide if you want to allow another person to have access to these assets now.
  4. For each remaining digital asset, write down what you want to happen with the asset, and who you want to have access to the asset. Be as specific as possible. Do you want your online photos to be shared with family? Do you want your blog to be archived or deleted? Do you want your fiduciary to have access to your electronic communications? 
  5. Next, contact your estate planning attorney to ensure these instructions are properly covered in your estate plan pursuant to your state’s laws. 
  6. Keep a written record of accounts and passwords up to date and let your executor or fiduciary know where they can find that written record. As account information changes, update your record so that your executor has the correct information when the time comes.

Thank you for watching this episode of Window to the Law.

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