There is no question about it – we are living in a digital world. So many aspects of our lives are now housed online, from banking to social media. It is therefore more important than ever to carefully consider how your digital assets will be handled by someone else, should you pass away.
Crafting your estate planning documents with your digital assets in mind can ensure the proper management and protection of those assets and information while you’re alive, as well as ensure the proper transfer of ownership of the accounts and assets when you pass away.
Digital assets include, but are not limited to: email and social media accounts, cryptocurrency, online banking accounts, digital photos, domain names and some intellectual property. Access to many of these types of digital assets require passwords, and many digital providers implement specific terms of service governing such access.
Since 2017, disclosure of digital assets after death is governed by Chapter 2137 of the Ohio Revised Code, which adopted the Uniform Fiduciary Access to Digital Assets Act. The UFADAA governs access to digital accounts by fiduciaries (e.g., agents or trustees). These laws, however, do not apply to digital assets of an employer that is used by an employee.
The strongest way to protect your digital assets after death is to include detailed instructions in a will, trust and financial power of attorney. Be sure to specify how you wish your digital assets to be managed, accessed and distributed, both during your life and after death.
Another way to safeguard your digital assets is to access online tools that allow you to designate a beneficiary or provide access to digital assets after death. For example, Google allows users to choose what to do if their Google account becomes inactive and Facebook allows users to designate someone else to manage their account after they die. It is important to note, however, that the user’s wishes spelled out in an executed will, trust or power of attorney can override, under Ohio law, any contrary provisions in a terms-of-service agreement.
For access to email, permission should be explicit. In any will, trust or financial power of attorney you create, be sure that the powers you give to your executor, successor trustee or agent to access your personal emails align with what personal conversations you are comfortable with them reading.
To implement your estate plan for your digital assets, first, inventory all your online accounts and files. Keep track of all account information, descriptions of the assets, where the assets are located, and their values. Be sure to keep passwords – and for crypto accounts, wallet information – saved securely.
Second, choose a digital executor whom you implicitly trust, who may have to step in to manage your digital assets during your life, and who will manage and transfer your digital assets in accordance with your estate plan when you pass away.
Because this area of law is quickly evolving, it is a good idea to consult with an estate planning attorney. They can help you secure your digital assets in a thought out estate plan, so your loved ones can access and manage these assets and accounts, should they ever have to step in to help you during your life or after you pass away.
This article originally appeared as a column for the Cleveland Jewish News.