Thought Leadership

Have you provided for your digital assets in your estate plan?

By Earl H. Cohen

In planning our estates most of us have been focused on minimizing taxes, probate, and making certain that our assets pass to our intended beneficiaries. The assets we tend to be concerned about generally fall into the categories of real estate, cash and securities accounts, tangible personal property, life insurance, and retirement accounts. But in this age of the internet and online activities it’s easy to forget that we all have a variety of digital assets as well. These include bank and investment accounts, photos, emails, and social media accounts. For the most part these assets are governed by terms-of-service agreements-the “fine print” that requires our agreement in order to open and use these accounts. These digital assets also include our software, and the data stored on our devices from computers to backup devices including flash drives.

Unfortunately, at this point, our appointed fiduciaries: personal representatives, trustees, guardians and conservatives, do not have immediate access to digital assets. While legislation, including the Uniform Fiduciary Access to Digital Assets Act (UFADAA) has been proposed to allow this access there has been strong opposition from the site providers. Providers claim that disclosures required by UFADAA would constitute a violation of the Electronic Communications Privacy Act arguing that the existing federal law controls what’s referred to as “federal preemption”. However, providers have proposed their own legislation, the Privacy Expectations Afterlife Choices Act (the “PEAC Act”, pronounced the same as peace as in “Rest in Peace”). To this point Virginia seems to be the only state where providers’ proposed legislation has gained any traction.

So, what do we do in the meantime? Provisions should be made in our powers of attorney, wills and trusts granting authority over digital assets to the appointed fiduciaries. We need to be aware of our rights in the term-of-service agreements for these accounts in the event of disability or death. We need to secure records regarding our on-line accounts including log in information and passwords. And, it’s worth considering an online secure storage site for the storage of account passwords, such as Legal Vault ®.

If you have any questions about the planning for digital assets, don’t hesitate to contact me.


Earl H. Cohen
Phone: 952-460-9242