What Happens to Your Digital Assets When You Die?

What Happens to Your Digital Assets When You Die?

by Jeffrey M. Salas, July 2015

Increasingly, we are spending a lot more time online, whether for business, personal, social, and/or entertainment reasons—usually it’s some combination of all of these. Depending on your situation, you may have vast digital content, mementos, communications, etc. These are assets that would be in tangible form if not for technological advancements.

What happens when we die with these digital assets? Estate and inheritance laws still haven’t caught up to the growing number of digital assets, but there are some things you can do to incorporate these items into your estate plan.

Password Protection and Estate Planning

The issue with digital assets is that much of this content may be password protected, hosted by private corporations, or generally hard to access if you are not around. While digital asset protection is meant to protect your privacy, it becomes more difficult for your executor/heirs to access and use these digital assets after death. And, many of these assets are going to be subject to the terms and conditions of specific websites and companies that require your agreement when signing up for a particular service.

What Are Digital Assets?

Digital assets are anything that is not in tangible, physical form. Most people have a number of digital assets, just a few examples are:

  • Email accounts
  • Subscription services
  • Music and video assets
  • Picture and document storage
  • Gaming assets
  • Social media content

As technology advances, many more of our assets will be digitized. While this often makes our lives more convenient, it presents unique issues when it comes to estate planning as digital assets are replacements for physical assets which would have historically passed in physical form via a will, trust, or intestate. But because of the realities of the extensive use of digital medium, these assets are now subject to any number of contracts and conditions.

What Happens To My Facebook Account When I Die?

Social media attracts millions upon millions of users. Based on statistics alone, many users will die with active accounts. Current laws, however, are mostly unprepared on how to handle these non-physical assets. So what does that mean for my digital assets? Well, first, you have to look at what your goal is.

If I pass away, I want my account with a particular website to be: (1) saved; (2) deleted; or (3) transferred to another person. Now, this may differ depending on each service/account. This will also depend on terms of use for each of the services. For example, Facebook has a program where you can request your account to become a memorialized account for you or you can request deletion of your account.

Can I Estate Plan for Digital Assets after Death?

Right now, beyond working with every company where you have a digital account, estate planning may have a major effect on how your digital assets are distributed. Estate plans, however, may not have all of the answers for digital assets. As mentioned above, digital assets are often governed by contracts with a specific provider. Some states have laws in place that allow digital assets to pass easily, but at this time, most do not.

So What Do I Do?

The best practice for digital asset management is to take a three-pronged approach:

1. Check The Provider’s Terms Of Use/Terms Of Service

If the provider has a plan in place for your digital assets after death, it is best you comply with those procedures to make sure you are achieving your particular goal with that particular account.

2. Add Language To Your Will/Trust

While this is largely untested in the courts, adding language that specifies your wishes with each of your accounts is a good idea. The law in this area is in flux, so make sure you have an estate plan that includes your digital assets. By doing so, you give the executor of your estate the legal tools they need to enforce your wishes. 

3. Check Your State Laws

State laws are also just popping up when it comes to digital assets. Making sure your estate plan is consistent with state law is very important. Also, the state law may have an effect on your terms and conditions and terms of use with your service provider.

The law still hasn't caught up with our digital lifestyle, but with proper planning your digital assets can be protected by your estate plan. Properly managing these assets requires more work but with the importance of digital assets is growing every year, so protecting them properly is critical.

If you need to create a new will, LegalZoom can help. Our last will includes specific language regarding your digital assets. Making a will through LegalZoom is fast and affordable. Get started by answering a few questions. LegalZoom will complete your will package and send it to you.