Digital Estate Planning – It’s Time to Plan for your Digital Assets

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In the year and a half since I last wrote about planning for digital assets not much has changed in Massachusetts. Our state is still one of a handful of states that has not enacted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), although there is a bill pending in the Massachusetts legislature that would do so. This bill would clarify the authority your appointed fiduciaries (such as your agent under your Power of Attorney, or the Personal Representative of your estate) would have to access your digital assets if you become incapacitated or pass away.

What has changed in the past year and a half is that we all continue to be more dependent upon technology, and our digital footprint increases with each passing day. We continue to use social media, online photo and document storage, and email on a daily basis, increasing the digital “assets” we have stored in these accounts. The importance of the assets stored online has also increased – perhaps this is the only place you now store vacation photos (rather than putting them in your photo album), or perhaps you only receive your bank or investment account statements online rather than in the mail. This online footprint will only continue to grow, as will the need for your estate plan to address your digital assets.

The more digital assets become mainstream, the more important it is to plan for access to these assets by others if you are not able to do so. To the extent these accounts contain information that you would like someone to be able to access after your death or incapacity, it is necessary to provide the appropriate authority for such access as well as instructions about what you want done with these “assets.” For some types of these assets, digital estate planning strategies are is crucial to prevent financial loss (i.e. the loss of a domain name used for business purposes, bill payment, access to investment account information), to protect sensitive personal information (on-line dating websites), to avoid identity theft, and to allow access to valuable assets (think bitcoin or an author’s manuscript).

Here are some tips to manage your digital assets until Massachusetts law catches up with the rest of the country and we have a clear roadmap for access for Massachusetts fiduciaries:

Keep in mind that if you have not used an online entity’s prescribed method of giving someone permission to access your account, and do not have express permission and direction in your estate plan documents, the company’s Terms of Service Agreement will govern. In such a case, you and your digital assets are at the mercy of the online provider, which may not allow access following your death or incapacity. Don’t fail your loved ones with poor digital legacy planning.

March 2019

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