How to Include Digital Assets in Your Pennsylvania Estate Plan
Estate planning continues to evolve and adapt to take into account changing technology and the way we live our lives today. As a result, there have been recent developments in the law to allow for planning with your digital assets. However, digital assets are something that many people overlook in creating or updating their estate plans.
What Are Digital Assets?
The easiest way to think about digital assets is that they are your “virtual belongings.” And, just like you would with your physical belongings, you should consider whether you want to make specific plans for your digital assets so that they are distributed according to your wishes when you pass away or accessed during your lifetime should you become disabled.
Common examples of digital assets include:
-Digital photos stored on your computer and online photo sharing accounts
-Social media accounts
-Blogs and website domains
-eBay and Etsy accounts
-Video games and accounts
-Online cloud storage accounts
-Loyalty reward programs
-Virtual currencies and online bank accounts
-Digital copyrights or trademarks
-Online subscription services
Who Has Access to Your Digital Assets?
Until recently, Pennsylvania law provided no guidance for individuals to transfer their digital assets or for their fiduciaries to access them. The Pennsylvania Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”) was signed into law on July 23, 2020, and addresses two main areas of planning with digital assets. First, it expressly indicates that fiduciaries have the authority to access digital assets. Second, it creates a set of rules for custodians of digital assets (think Google, Apple, Facebook, LinkedIn, etc.) to follow to allow for access by fiduciaries.
If you have fiduciaries named in your estate plan, such as an Agent under a Financial Power of Attorney or an Executor of your Will, but you don’t specifically mention that your fiduciary can handle your digital assets, there is a possibility that they will be denied access. This can be a fairly serious problem, particularly with digital assets that have a monetary value, such as a blog or a YouTube channel.
Therefore, your Will, Trust, and/or Power of Attorney should contain provisions that expressly authorize your fiduciary to handle your digital assets. And your Will and Trust can then make provisions for who receives these assets when you pass away.
Another way to grant access to your digital assets is through the custodian itself. Some custodians offer an “online tool” that operates much like a beneficiary designation form for a life insurance or retirement account. These online tools allow you to tell the custodian who can access your digital assets, and which ones. It is important to note however, that like a beneficiary designation, any online tool designation operates apart from your Will or Trust. So if there is a conflict, the online tool instructions control. Therefore, it is important to be consistent.
If you have not made provisions in your documents for digital assets, or have not used an online tool with the custodian, then your fiduciaries may be left to reckon with the terms of the custodian’s terms of service agreement – you know, that long form that most of us “Agree” to without reading so we can get on with signing up for an account. These terms of service agreements generally favor the custodian and can restrict access to your fiduciaries.
How to Include Digital Assets in your Estate Plan?
In general, you will want to start with an inventory of your digital assets that includes web addresses, usernames, and passwords. At a minimum, this inventory can be important information for your fiduciary to understand what your digital assets are and how to access your accounts in the event of your disability or death. In cases where digital assets have a significant monetary value, then it makes sense to go a step further and meet with an estate planning attorney to make sure you are taking all the appropriate steps to include your digital assets in your estate plan.
Contact Anderson Elder Law
If you need assistance with whether or how to include digital assets in your estate plan, fill out our contact form today to schedule an initial consultation. You can also email info@AndersonElderLaw.com or call 610-566-4700 to schedule your appointment. Let our Pennsylvania Certified Elder Law Attorneys help you make sure your estate plan is in order.