As our online presence increases, so do our electronic records and digital accounts. These records and accounts are digital assets you should address in your will and estate planning.
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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, and real estate. This is still true today.
However, as our online presence increases, you should add electronic records and digital accounts to the list. Digital wills ensure that these “digital assets” are taken care of in your estate plan. This article covers some things to keep in mind as you prepare your digital legacy.
Digital Wills vs. Traditional Wills
You can include your digital will as part of a traditional will, or a separate document. However, note that a separate digital will differs from an “online will” or an “electronic will.” These terms can be confusing.
- An online will generally refers to creating a traditional will online, printing it out, and signing it according to your state laws to make it valid.
- An electronic will generally refers to how a will is signed with electronic signatures of the testator or witnesses. A few states have statutes for electronic wills or “e-wills,” and a few states adopted the Uniform Electronic Wills Act.
- A digital will is an inventory of your digital property with instructions on how to access that property.
To some extent, the term “digital will,” when applied to an independent document, is misleading because it may suggest that these documents always carry as much weight as a traditional will. In reality, a digital will is an 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 email and social media accounts.
By contrast, a last will and testament is a formal legal document that must satisfy several 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:
- Be of legal age to make a will
- Have a “sound mind” (mentally competent)
- Have witnesses see the testator sign the will
A last will and testament is a legal, enforceable document. A digital will is not. Therefore, you can include a provision in your traditional will for the digital assets that you own.
Digital Assets, User Licenses, and Legacy Policies
So, you can put a provision in your will for the digital assets you own. However, what about the digital accounts and assets you don’t own?
Often, online accounts are not your property. Instead, companies grant you access through user licenses. This means that you cannot assign a beneficiary as you can do with a bank account.
Even so, many digital service providers recognize that your online accounts play a significant role in your life. You may want those accounts handled in a certain way. Therefore, many online service companies 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. The companies may allow your personal representative or executor (the person you select to carry out your will’s instructions) to take control of your account. Or they may automatically delete your account after a period of inactivity. It is wise 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 to handle your account if it is inactive for a specified length of time. Google explains, “when you have been inactive in Gmail, Google Drive, or Google Photos for two years, all 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. You can appoint a legacy contact to manage your memorialized page, or you can submit a request to have the account removed. However, the company will not provide your login information to a third party to preserve your privacy. You must give that to your legacy contact.
- Twitter — Twitter allows family members to deactivate a deceased person’s account. However, the company will not provide account access to anyone, regardless of their relationship with the deceased person.
- Microsoft — Microsoft explains in their policy when someone dies, “You don’t need to contact us to let us know that someone has died or has become incapacitated.” Unless your personal representative has your account credentials, Microsoft accounts are automatically deleted after two years of inactivity.
- Amazon — Amazon is less transparent about how they manage or deactivate a deceased person’s account. 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 the 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 relatively new, and until recently, its legal status was unclear. Since 2015, nearly every state has enacted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which legally recognizes digital estates. In particular, the law gives your personal representative or executor legally protected access to your online accounts.
Before RUFADAA, a personal representative administering your digital will would likely have run into legal barriers meant to protect your accounts from hackers. Now, you can appoint a fiduciary (a person authorized to act on your behalf and in your interest) the authority to access your digital accounts and data. A fiduciary may be appointed in a will (as a personal representative), through a power of attorney, by a court, or in a trust arrangement.
This 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. Your fiduciary must provide a certified copy of your death certificate and the document showing your consent to the disclosure.
Creating a Digital Will
Again, a “digital will” is an informal document. However, for it to be enforceable, you must appoint a personal representative in a valid will giving 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 administered when you die.
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
Use a password manager or create a spreadsheet to organize all your login information, such as usernames, passwords, and answers to security questions. Do not put this information directly into your will because once your estate enters the probate process, all that information becomes publicly available. You may need to arrange additional safety measures to protect your cryptocurrencies and NFTs.
2. Select a Digital Executor — Select a trustworthy person to follow your wishes after you die. Let them know about your digital will in advance. You should also name a backup or alternate representative in case your primary representative is unable to serve.
3. Draft a Valid Will — Create a last will and testament. Give your representative specific authority to carry out your instructions. Make sure you include this authority in your will and that your will that meets all legal requirements for validity. You can save time and money by drafting your will using FindLaw’s do-it-yourself estate planning tools. Provide detailed instructions on how you want your digital estate managed after you die.
4. Store Your Will in a Safe Place — A will is only useful if someone can find it. Store it with your other important personal documents, and make sure your representative knows where it is.
With so much of modern life conducted online, it is increasingly important to inventory your digital estate, digital accounts, and digital assets and address them in your will.