Given the prominence of our use of computers, the cloud, and online technology in our professional financial, and personal lives, it is indisputable that a good estate plan—including your Will, Power of Attorney, and any applicable trusts—must clearly address your wishes as to your intended beneficiaries of your digital assets and the person or persons you wish to control and gain access to these assets upon your incapacity or death. But there is more that you need to know.
What are “Digital Assets? These assets can include the following, to name only a few: 1. Emails. 2. Files stored on the hard drive of your computer or other drives, including, for example, your saved passwords to banking and investment accounts. 3. Photographs, documents, music, and videos stored in the cloud or posted to social media sites. 4. Blogs written by you. 5. Cryptocurrency. 6. Popular digital storefronts such as eBay© pages, and valuable web domains.
The State of the Law in Pennsylvania Regarding Access to Digital Assets is… “None Yet”. As of the writing of this article, all but 7 states have passed legislation that, at a minimum, confers power on personal representatives of estates (executors or administrators) to access and manage the digital assets of the deceased. Many of those states’ laws also confer similar powers on those appointed as agents under Power of Attorney and as legally appointed guardians. In 2015, the Uniform Law Commission developed a Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) for consideration and possible adoption by the legislature of each state. Despite prior bills introduced in the Pennsylvania legislature, Pennsylvania has yet to enact any form of RUFADAA, although legislation currently awaits action by the Pennsylvania Senate.
Compounding the hazards of the absence of current state law regarding digital access, a common continuing practice of certain social media sites and email accounts such as Gmail is to rely on their stated “terms of service” and “privacy policy” language to dictate what will happen to those accounts or assets at the death of the account holder. Google, for example, has an “active account manager” designation (https://myaccount.google.com/Inactive) that is useful only if one arranges his or her digital affairs before death. Facebook provides for your appointment of a “Legal Contact.” Without proper powers and directives in your estate planning documents, those persons you appoint to administer your assets during your incapacity or after your death might find themselves “locked out” of your accounts and barred from protecting and directing your valuable digital information and other digital assets.
How to Protect Your Digital Assets in the Absence of State Law. Because Pennsylvania has not yet adopted the RUFADAA or any similar access to digital asset law, it is important that you do the following:
- Clearly include appropriate authorization in your Power of Attorney, Will, and any trust you create that will empower your Agent, Executor, and Trustee to gain access to and manage your digital assets. Be as specific as possible as to your wishes and the consent and directions you intend those fiduciaries to have.
- Provide clear and detailed direction in your Will and any trusts as to who will receive or inherit these digital assets upon your death. In addition, specifically identify in those documents any digital accounts, such as social media accounts, or other private or confidential information or files that you wish to be deleted upon your death.
- Prepare — and update as necessary — as a separate, private document a complete inventory of your digital assets, online accounts, and their corresponding passwords. Keep a copy of the inventory with your secured personal documents and provide an up to date copy to your Estate Planning Attorney for your confidential file. (Many of my most technologically vigilant clients, for example) provide me with a sealed envelope containing this updated information on January 1 of each year.) Consider storing such passwords through corresponding websites or applications (for instance, the stored password options associated with your online bank or brokerage accounts). If you use a password management application, be sure to include that information in your inventory.
An experienced and adept Estate Planning Attorney will work with you to plan effectively for the proper disposition and management of these valuable—and too often overlooked— assets.
An Allentown native, Judith A. Harris, Esquire, LL.M (Taxation) is an Equity Member of the law firm of Norris McLaughlin, P.A., a full service business law firm (including Immigration Law, and a member of the MeritasTM Law Firms Worldwide network) with offices in Allentown, PA, Pennsburg, PA, Bridgewater, NJ, and New York City, and Co-Chair of the Firm’s Estate, Trust and Individual Tax Practice Group.
