In today's increasingly digital world, more of our lives - and legacies - exist online. From social media and cryptocurrency to digital photo albums and subscription services, failing to plan for your digital property can create confusion and conflict for loved ones. Estate planning for digital assets and online accounts ensures your digital life is protected, managed, and transferred according to your wishes.
If you're ready to take the next step in securing your digital legacy, contact Heritage Law Office by using our online form or calling 414-253-8500 for legal assistance.
What Are Digital Assets?
Digital assets are any electronic records or files that hold value - personal, emotional, or financial. These may include:
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Email accounts (e.g., Gmail, Outlook)
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Online banking or investment accounts
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Cryptocurrency wallets (e.g., Bitcoin, Ethereum)
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Social media accounts (e.g., Facebook, Instagram, LinkedIn)
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Online subscriptions (e.g., Netflix, Amazon Prime)
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Domain names and websites
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Cloud storage (e.g., Google Drive, Dropbox)
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Digital photo albums
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Gaming accounts and digital goods
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NFTs or blockchain-based assets
Without clear instructions in your estate plan, your loved ones may face significant legal hurdles accessing or closing these accounts - even with your passwords.
Why Digital Assets Must Be Included in Your Estate Plan
While most people remember to include their home, bank accounts, or life insurance in their estate plans, digital assets are often overlooked, which can result in:
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Inaccessibility: Loved ones may not be able to legally access accounts due to federal privacy laws and service provider restrictions.
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Lost Value: Cryptocurrency or monetized digital content (such as YouTube channels or Etsy shops) may go unclaimed.
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Identity Theft: Inactive online profiles can be exploited by cybercriminals if not properly deactivated.
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Delayed Estate Administration: Without clear instructions, your executor may not know what assets exist or how to manage them.
Legal Framework for Digital Assets
The Role of RUFADAA
The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) provides legal structure for fiduciaries (like executors and trustees) to access digital assets. Under RUFADAA:
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Online service providers may limit access unless the deceased user explicitly granted authority through proper legal documents.
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A will or trust can be used to designate a fiduciary to manage digital assets.
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Service providers' terms of service (TOS agreements) often supersede informal instructions or verbal wishes.
Terms of Service Agreements (TOS)
Each online account or digital service operates under its own TOS. These agreements:
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Dictate what happens upon death or incapacitation.
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May prohibit account transfers.
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Sometimes allow users to pre-designate a legacy contact or inactive account manager (e.g., Facebook's Legacy Contact feature).
Tip: Use service-specific tools when available, and back them up with formal estate planning documents.
How to Include Digital Assets in Your Estate Plan
A solid digital estate plan should be built with these key components:
1. Inventory Your Digital Assets
Begin by listing all digital assets you own. Include:
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Website logins
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Cloud file locations
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Device passwords
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Software licenses
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Cryptocurrency wallets and private keys
Make this list accessible but secure. Consider using a password manager or encrypted digital vault.
2. Name a Digital Executor
A digital executor is a person you designate to manage your digital property. This individual should be:
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Tech-savvy
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Trustworthy
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Named in your will or power of attorney documents
Keep in mind, your digital executor may be different from your traditional executor - and should be appointed legally.
3. Provide Legal Authorization
Update or create estate planning documents that grant authority to access and manage digital assets, including:
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Your will
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Trust documents
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Power of Attorney
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A separate Digital Assets Memorandum
This ensures compliance with state law and federal privacy protections like the Stored Communications Act and Computer Fraud and Abuse Act.
Special Considerations for Cryptocurrency and NFTs
Cryptocurrency and non-fungible tokens (NFTs) present unique challenges in estate planning. Unlike traditional bank accounts:
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There is no central authority to contact if login information is lost.
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Access requires private keys or seed phrases, which must be stored securely and shared appropriately.
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Valuation can be volatile, requiring careful documentation.
Consider using a secure cold wallet with written instructions for your fiduciary - and include it in your digital asset inventory.
You can learn more about how digital assets are treated in trust planning by visiting our article on whether an irrevocable trust can own cryptocurrency.
What Happens If You Don't Plan for Digital Assets?
If you pass away or become incapacitated without clear digital asset instructions:
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Your family may not know what accounts exist.
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Accessing accounts could be considered a violation of federal law.
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Valuable or sentimental assets may be lost permanently.
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Executors may face legal and practical hurdles that delay the estate settlement process.
In some cases, even with a court order, service providers may deny access due to restrictive Terms of Service. Without digital estate planning, your loved ones might need to file motions in probate court just to access a Gmail account or deactivate a Facebook page.
Best Practices for Securing Your Digital Legacy
Follow these best practices to make digital estate planning a seamless part of your overall strategy:
1. Use a Digital Assets Memorandum
Unlike a will, a Digital Assets Memorandum can be updated easily and privately. It typically includes:
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A list of digital accounts
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Login credentials (or instructions for accessing them)
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Notes about how you'd like each asset handled
This document should be referenced in your will but kept separate to maintain privacy and flexibility.
2. Backup Data Regularly
Ensure your important digital data - family photos, financial records, documents - are backed up:
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Locally (external hard drive)
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In the cloud (with secure encryption)
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Using trusted software with reliable data recovery options
This redundancy ensures critical data isn't lost with a failed device or forgotten password.
3. Take Advantage of Account-Specific Tools
Many platforms now allow you to plan for account management after death. Use these tools:
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Facebook: Legacy Contact
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Google: Inactive Account Manager
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Apple: Digital Legacy
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LinkedIn: Account closure request options
These tools are not a replacement for estate planning but can help streamline the process for your executor.
Incorporating Digital Assets into Trusts
If you're using a revocable living trust or irrevocable trust, you can transfer ownership of digital property where allowed. This is particularly useful for:
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Monetized blogs or websites
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Domain portfolios
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Digital intellectual property
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Crypto assets
To ensure legal compliance and enforceability, work with an experienced estate planning attorney. You can also explore our related article on how to choose the right trustee for your trust.
Digital Privacy and Security After Death
Protecting your identity doesn't end when life does. Digital identity theft of the deceased is a growing issue. Estate planning can help minimize risk by:
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Deactivating accounts that contain personal data
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Ensuring only authorized individuals access your information
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Avoiding phishing attempts against grieving family members
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Preventing fraudulent financial activity
A well-documented and secure digital plan is an important cybersecurity tool, not just an estate planning strategy.
When to Update Your Digital Estate Plan
Just like with traditional estate plans, you should review your digital asset instructions:
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Annually, to confirm all information is up to date
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After major life events (marriage, divorce, new child)
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If you add or delete significant accounts
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When laws or regulations change
We recommend reviewing your plan at least once a year - and whenever you update your devices, email, or password manager.
Contact an Attorney for Digital Estate Planning
A knowledgeable estate planning attorney can help you:
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Identify and categorize your digital assets
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Draft a digital assets memorandum
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Appoint a digital executor
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Ensure legal compliance with privacy laws and service agreements
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Protect your beneficiaries from unnecessary legal roadblocks
At Heritage Law Office, we assist individuals and families in creating legally sound, secure estate plans that reflect today's digital realities. Whether you're preparing your first will or updating an existing trust, we can help ensure your online legacy is properly handled.
Contact us by calling 414-253-8500 or using our online form to schedule a consultation.
Frequently Asked Questions (FAQs)
1. What are examples of digital assets that should be included in an estate plan?
Digital assets can include email accounts, cloud storage, online banking, cryptocurrency, social media accounts, blogs, websites, online subscriptions, photo libraries, domain names, and more. If it lives online or on a digital device and has value (monetary or sentimental), it should be addressed in your estate plan.
2. Can my family access my online accounts after I pass away?
Not automatically. Many online platforms are protected by privacy laws and Terms of Service Agreements that restrict access to anyone other than the original account holder. Without legal authorization (such as in a will, trust, or power of attorney), your family may be blocked from accessing or managing your accounts.
3. What is a digital executor, and what do they do?
A digital executor is someone you name in your estate plan to handle your digital assets after you pass away. Their role includes locating and managing your online accounts, ensuring your digital property is distributed or deleted per your wishes, and securing sensitive information to protect against identity theft.
4. Are there legal risks if someone accesses my digital assets without permission?
Yes. Accessing someone's digital accounts without legal authorization may violate federal laws like the Computer Fraud and Abuse Act or the Stored Communications Act. That's why it's important to grant clear authority in your estate planning documents and follow proper procedures.
5. How do I make sure my cryptocurrency is included in my estate plan?
To include cryptocurrency in your estate plan, maintain a secure and accessible record of your wallet addresses, private keys, and any relevant login credentials. You should reference these assets in a digital assets memorandum and grant access to a trusted individual through a legally recognized estate planning document, such as a will or trust.