With the emergence and development of new technology there are more opportunities being created for people to possess digital assets. In the past, estate planners did not imagine the growth possibility for digital assets, and did not include them in estate plans. Now, in this new era, planning and administration of trusts and estates alike have major considerations to make when it comes to how to handle a loved one’s digital assets. If not properly planned for, you or your loved ones may have no control over your digital assets after your death.
Probate Code section 871 (h) defines digital assets as “an electronic record in which an individual has a right or interest. The term ‘digital asset’ does not include an underlying asset or liability, unless the asset or liability is itself an electronic record.” This definition includes a variety of assets including social networking sites, cryptocurrencies, email accounts, online financial or brokerage accounts, music and video sharing, photo-sharing sites, messaging applications, rideshare applications , food and health applications, blogs, etc.
Because the digital assets are endless, there are countless questions to consider when it comes to the management and administration. Who has access to emails, bill-pay, and social media accounts upon death or incapacity? What ownership or intellectual property rights exist for online posts or sharing? How are digital accounts accessed upon death or incapacity? Should certain accounts be terminated?
How will all of this be managed?
Under the Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”) as adopted by the California Probate Code § 870 et seq., nominated agents explicitly have rights access to digital assets only if named to have that access, otherwise a petition in probate court may be necessary get access to that account. The best protection for digital assets is to make sure someone is designated to manage these accounts in case of death or incapacity just as they would manage any other financial asset.
Further, deceased individuals identities are the most susceptible with their digital accounts when there is no one designated to manage these accounts. Once someone has passed away, their accounts are used by individuals impersonating them—or more easily by online transactions—and their loved ones are forced to go through the process of filing a report of identity theft.
Regardless of age, everyone has an interest in digital assets nowadays. From emails and automatic bill pay to social media accounts and cryptocurrency, everyone needs to consider what will happen to their digital assets.
It is advisable to consult with an attorney well-versed in the management of digital assets to discuss an estate plan tailored to fit your particular needs with all of your assets and what the administration of them will look like for your loved ones.
Megan Moghtaderi is an Estate Planning Attorney based out of Irvine, California. She can be reached at 949-756-0684