Estate Planning for Digital Assets: What You Need to Know
By: Lauren C. Enea, Esq.
Estate Planning today must include a plan for your digital footprint – the never-ending trail of online accounts, files, photos and information you leave behind. If you are anything like me, your digital footprint is dilapidated at best and includes a mixture of about 2,000 selfies filed along-side important family photos somewhere on the “cloud.” Estate Planning in the digital age has become messy, from cryptocurrency account becoming locked to ensuring someone is appointed to oversee your “Facebook Legacy Page,” there is much to be done!
Here are a few “To-Dos” to get you started:
- Make a Digital Inventory
List all your digital accounts, login information, and what you want done with them. This includes emails, social media, cloud storage, and yes, even your Costco account. Using a password manager can help organize all the passwords associated with your accounts, allowing you to remember one password to get into the password manager account, which then provides access to individual subfiles that securely keep all passwords for any digital account you may have.
- Communicate your Digital Preferences and Inventory to your Executor, Trustee and Agent under Power of Attorney
While some individuals have started to appoint a “Digital Executor” (ie- a tech-savvy person who will be in charge of your digital footprint), this person will likely coincide with the individual you have appointed in your estate plan to handle all of your other financial decision making in the event of incapacity, and distribution of your non-digital assets after your passing. Please make sure this person has (or knows how to access) information regarding your digital inventory and passwords.
Most states, including New York, have laws that grant a decedent’s executor, under a Last Will and Testament, or agent under a Power of Attorney the right to access and manage digital assets. It is important that your Will, Power of Attorney and Revocable Trusts (if transferring digital assets to a Trust) specifically reference the right to manage and access your digital assets and digital devices. That being said, having the authority to gain access and the ability to gain access are very different. Certain digital platforms have very strict guidelines for granting access to a third party. As such, organizing your digital assets and providing your loved ones with the information they need to gain access is very important. Additionally, you should review the Terms of Service Agreements of your digital providers to see if any third-party authorization can be noted in your account(s). As such, you should leave specific instructions in your estate planning documents or in a separate letter for your Executor, Trustee and/or Agent under a Power of Attorney as to where they can find your passwords, what you would like done with your digital asset accounts and social media accounts and most importantly, who is to receive your digital assets upon your passing.
- Plan for your Social Media Accounts
Social Media accounts are unique in the sense that they continue to have a public presence long after an individual’s death. Facebook, in particular has a feature where you can decide during your life what you wish to happen to your Facebook page upon your passing: do you want your account memorialized (so that people can post tributes and remember you), or deleted? On your “Settings” page of Facebook you can toggle to “Memorialization Settings” to name a Legacy Contact who will be able to manage your memorial page, or alert Facebook that you have passed away, so that your Facebook page will be deleted.
Unfortunately, it does not appear that Instagram or any other social media platform currently allows you to appoint someone ahead of time, but it does appear that a related individual can request to memorialize or delete an account based on a form and death certificate.
- Don’t forget about your Photos!
In my opinion, your digitally kept photographs are the most important item that can be lost upon one’s passing. I have boxes and boxes of old photographs from generations of my family members and I worry that because a majority of my photos (and my children’s memories) are digital, there is a greater likelihood of them becoming lost or inaccessible after my passing. It is important that family members continue to preserve these photos digitally, just as we have the physical photos, “slide decks” and DVDs / USB Sticks of the past. The best way to preserve your memories are to 1) back them up to the Cloud; 2) Organize and label folders by year or event; and 3) share access to your account to your loved ones through Google Photo or shared albums through your iPhone.
And PERHAPS, print a few that throw them in a physical photo album, for good measure!
In closing, your Digital Assets are now a part of everyday life. Planning for them should be given just as much thought and time as planning for your real property, brokerage accounts and retirement assets! Please don’t forget to plan for your digital afterlife and remember, the internet never forgets…unless you tell it to!
