Estate Planning for Digital Assets

July 19, 2017, by Shelley Thompson, attorney with Burns Figa & Will, P.C.

Have you considered what would happen to your digital photos and videos in the event of your death? Have you provided some instructions for your executor on how to handle your Facebook or Twitter account? While most estate plans contain tools for fiduciaries to access financial assets, and healthcare information, few provide personal instructions on digital assets. Yours should.

Digital assets include things like your user names and passwords, email, electronic access to photos, data storage, phone data, stored music, bank account sign-ins, domains, and more. In 2016, Colorado enacted the Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”). It provides that you may “allow or prohibit in a will, trust, power of attorney, or other record, disclosure to a fiduciary of some or all of [your] digital assets, including the content of electronic communications sent or received by [you].” In other words, if you’ve given them written permission, your fiduciary (i.e., executor, agent on your power of attorney, trustee) can access your digital assets. According to the law, that power “overrides a contrary provision in a terms-of-service agreement that does not require the user to act affirmatively and distinctly from the user's assent to the terms of service.” So even if you’ve clicked “I agree” to 10 different online agreements, providing 10 different sets of rules and access on the death of a user, your designated fiduciary gets access to your digital assets under the law. This provision was needed because you’d have unwittingly signed, for example, a Yahoo user agreement that says your account will be disabled on your death, and a Google user agreement that says Google will decide whether a family member shall be granted access, and another user agreement that provides something else! While each user agreement varies, many were intended to protect your confidential information, which is a good thing, but in turn have caused headaches for family.

The RUFADAA goes on to say that if you’ve designated a fiduciary to access your digital assets, the custodian can either grant them full access or “partial access to the user's account sufficient to perform the tasks with which the fiduciary or designated recipient is charged.” That means even with your designation, your fiduciary might not be able to access everything you can. It also provides a host of proof the custodian may require for your fiduciary to access to your email after death. Finally, it reminds your fiduciary of his/her existing high duty of care, loyalty, and confidentiality with respect to your digital assets, as with any of your assets.

As a practitioner in Colorado, I have found the best way to provide for digital assets in your estate plan is two-part: (1) make sure your durable power of attorney and your will contain a paragraph explicitly granting access to your fiduciary over your digital assets, and (2) make sure you’ve left at least a few written instructions for your fiduciary on what they should do. As for the first point, the paragraph for your will or power of attorney is easy enough to ask your attorney to insert (any estate plan created for Colorado residents on iWillandTrust.com contains thorough paragraphs in your durable power of attorney and will or living trust, granting your fiduciary access to your digital assets). As for the second point, here’s an example of one person’s written instructions to a fiduciary: “In the event my spouse and I are deceased, please (a) copy all my photos from various storage locations onto a storage drive for each of my kids, (b) delete all my email except what could be needed for any existing lawsuits, (c) notify my Facebook friends of my death and then turn off my Facebook account, (d) transfer any domain names I own to my kids, and (e) here are a few important passwords…”

In sum, don’t delay designating a fiduciary in your will or living trust, and your durable power of attorney, to handle your digital assets and leaving them a few written instructions specific to your situation.

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