Digital Asset Planning

By Cody Ross Esq., Intern for
AnnMichelle G. Hart, Esq.
April 30, 2021 

There is often an aspect of estate planning that gets overlooked, the digital asset. In today’s modern and technology driven world, the digital asset is an extremely important asset and one that needs to be a part of anyone’s estate plan. A digital asset is any property that someone owns that does not have a physical form or is accessible through the internet. Examples include emails, photographs and videos saved online, any documents or data saved on a computer or cloud-based server, and investment accounts and cryptocurrencies. 

Many forget to include these assets in their estate plans. Without including digital assets in your estate plan, these assets may be lost forever. Even if they are not lost, your family may have an incredibly difficult and stressful time attempting to access your accounts. This comes from the rise of different national and state level data privacy laws. Online service providers are also hesitant to provide a deceased person’s information, even to family members, when there was not consent to share such information. 

The two main federal laws that hinder family members from accessing someone’s digital assets after death are the Stored Communications Act (SCA) and the Computer Fraud and Abuse Act (CFAA). These acts make it illegal for someone to access accessing someone’s computer or electronic communications without that person’s consent. This can include even if the person attempting to access the information was provided with the password. Because of these laws, service providers do not want to provide information because they may become liable for the illegal access. 

Service providers also have similar provisions in the Terms of Service that users must accept prior to accessing the services. Many of these Terms of Service prohibit third party access to the information, even if that third party was given the account login information. Between the Terms of Service and both the SCA and CFAA, it becomes extremely difficult, if not impossible, for family members to access someone’s digital assets after death, even with the login information. 

Luckily, many states, Washington included, have adopted their own laws to address these challenges to family members. Under Washington’s Uniform Fiduciary Access to Digital Assets Act, the representative of a person’s estate is given much more power to access a person’s digital assets. Under the Act, a person can either use the online service provider’s process to designate someone to access the digital assets after their death or nominate someone in their will to access the digital assets (if there is not an online process or if they elect to not use it). Under either path, the person’s decision overrides the Terms of Service of the service provider and allows for the digital assets to be accessed. People are even able to elect what information and assets they want to be disclosed while informing the service provider of the information that they want to be kept private. 

With the importance of these digital assets, and the various challenges that representatives and family members can face in accessing digital assets, it is important to include your digital assets in your estate plan. By including these assets in your estate plan, it gives your representative and family members the standing necessary to challenge for access to those assets in case the service provider does not want to provide such information. Without such planning and standing, your assets may be lost forever. 

There are four main steps that you can take to include your digital assets in your estate plan. The first step is to make a list of all of your digital assets. Again, this includes everything from bank accounts and emails to photographs and personal videos. Having this list leads into the second step, which is to understand your assets. Some assets are monetary in nature (such as bank and investment accounts) and some are sentimental in nature (such as the photographs). By having your list and understanding of your assets, it helps you identify who you want to receive each asset. 

The third step is to consistently backup all of your digital assets in both a cloud-based server and on your own computer. By having two different areas where you backup your assets, it allows easier access to your family members in case one of those areas becomes inaccessible or broken. The last step is to provide access to your digital assets in your estate plan. By listing your digital assets in your estate plan, it allows for your representative to be able to access them under Washington law. Providing access to your digital assets also includes writing down all of your assets (from your list) and including all of your passwords and necessary login information. This will make it especially easy for your family members to access your information and ensure that your legacy stays intact. 

Estate planning is always something that is difficult and takes time. By consulting with an educated and experienced estate planning attorney, you will be able to ensure that your final wishes are respected, and your legacy will be preserved. Those becomes even more true with digital assets. An estate planning attorney will ensure that your digital assets are not forgotten, and your estate stays whole.