What Is a Digital Will?
A will is a legal document explaining how to distribute your property (known as your "estate") when you die. In the past, your estate would have included things like cash, cars, real estate, etc. This is still true today.
However, as more and more of our lives move online, electronic records and digital accounts should be added to the list. Digital wills are meant to make sure these "digital assets" are taken care of in your estate plan. This article goes over some things to keep in mind as you organize your digital estate.
Digital Wills vs. Traditional Wills
A digital will can be included in a traditional will, or it can be a separate document. However, note that a digital will is not quite the same as an "online will" or an "electronic will." These other terms simply refer to digital versions of a traditional will whereas a "digital will" is an inventory of your digital property.
To some extent, the term "digital will" is misleading because it may suggest that these documents always carry as much weight as a traditional will. In reality, a digital will can be a completely informal document you leave behind explaining to your loved ones how to access things like family photos stored on a hard drive or providing login instructions so they can deactivate your social media accounts.
By contrast, a "last will and testament" is a formal legal document that must satisfy a number of requirements to make it through probate (the process of legally validating your will). For example, the person who makes a will (known as the "testator") must have signed it in front of witnesses. The testator must also have been old enough and of "sound mind" when signing.
Digital Assets, User Licenses, and Legacy Policies
In addition to the unenforceability of an informal digital will, the ownership status of digital accounts can create another problem. Wills distribute your property when you die. However, online accounts are often not your property. Instead, you are granted access through user licenses.
Even so, many digital service providers recognize that your online accounts may play a significant role in your life and that you may want them handled in a certain way after you die. Therefore, many online services include "legacy policies" in their terms of service agreements addressing what will become of your digital footprint after you pass away.
These policies vary widely, from allowing personal representatives (the person you select to carry out your will) to take control of your account to automatically deleting your account after a period of inactivity. It's a good idea to review these legacy policies before drafting your digital will. Here are a few sample policies used by popular services:
- Google — Google's "Inactive Account Manager" allows you to decide how your account is handled if it is inactive for a specified length of time. Google explains that "when you have been inactive in Gmail, Google Drive or Google Photos for 2 years, all of your content may be removed from that product." You can also submit a request regarding a deceased user's account.
- Facebook and Instagram — Facebook and Instagram each provide similar options for managing a deceased person's account. First, the account can be converted to memorialized status. Second, you can submit a request to have the account removed. However, to preserve the account holder's privacy, login information will not be provided.
- Twitter — Twitter allows family members to deactivate a deceased person's account. However, account access will not be provided to anyone regardless of their relationship to the deceased person.
- Microsoft — Microsoft explains, "You don't need to contact us to let us know that someone has died or has become incapacitated." Microsoft accounts are automatically deleted after two years of inactivity.
- Amazon — Amazon is less transparent about how a deceased person's account may be managed or deactivated. If you are not the account holder, you must contact Amazon's customer service department responsible for processing data requests.
- LinkedIn — LinkedIn allows you to request that a deceased person's account be memorialized or closed if you have authority to act on their behalf. If you do not have this authority, you can simply try to have the account hidden by reporting the death.
Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA)
The idea of a "digital estate" is fairly new, and until recently its legal status was unclear. In 2015, the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) was proposed to solve this problem. It has since been adopted by almost every state.
Before RUFADAA, a personal representative administering your digital will would likely have run into legal barriers meant to protect your accounts from hackers. You can now give a fiduciary (a person authorized to act on your behalf and in your interest) authority to access your digital accounts and data. The fiduciary may be appointed in a will as a personal representative, as well as through a power of attorney, by a court, or in a trust arrangement.
The authorization operates separately from any terms of service you agreed to with the service provider (known as the "custodian"). Your representative will have the same access rights as you. Among other things, your fiduciary must provide a certified copy of your death certificate and of the document showing your consent to disclosure.
Creating a Digital Will
Again, a "digital will" can be an informal document. However, for it to be enforceable, you must appoint a personal representative in a formal will that gives them specific power to handle your digital estate. Each state has its own requirements for making a valid will, but RUFADAA now gives some assurance that your digital assets can be properly administered when you die.
To make administration easier, you may want to simply provide things like emails, usernames, and passwords in the text of your will. However, in case your representative runs into problems, they can fall back on the power you give them through your will. Follow these steps to create your digital will:
1. Create an Inventory — Create a list of all the sites where you have accounts. Consider the following:
- Email accounts (Gmail, Microsoft Outlook, Yahoo, etc.)
- Social networking accounts (Twitter, Facebook, LinkedIn, etc.)
- Photograph and video sharing accounts (YouTube, Instagram, TikTok, Snapchat, etc.)
- Cloud-storage accounts (Google Cloud, iCloud, Dropbox, Microsoft OneDrive, etc.)
- Online purchasing accounts (Amazon, Venmo, PayPal, eBay, etc.)
- Airline and hotel reward accounts
- Personal websites
2. Select a Personal Representative — Select a trustworthy person to carry out your wishes after you die. Let them know about your digital will in advance. You should also name an alternate representative in case the primary representative is unable to serve.
3. Draft a Formal Will — Provide detailed instructions on how you want your digital estate handled after you die. Give your representative specific authority to carry out your instructions. Make sure this is done in a formal will that meets all legal requirements for validity.
4. Store Your Will in a Safe Place — A will is only useful if it can be found. Store it with your other important personal documents and make sure your representative can find it.
Where To Draft Your Digital Will
With so much of modern life conducted online, it is more and more important that your digital estate be reflected in your will. You may save time and money by drafting your will using FindLaw's do-it-yourself estate planning tools. However, if you still have questions regarding your digital will, an experienced estate planning attorney in your area can help.
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