Our lives have become increasingly digital. Many of us are familiar with “digital assets” – in fact, we use them on a daily basis. These include assets that are accessed electronically, including but not limited to, email accounts, digital music, social networking accounts such as Facebook or Twitter, blogs, cloud storage accounts, financial accounts and online stores. Digital assets tend to provide a convenience factor in our lives, whether it be communicating with others via email or social networking sites or accessing and paying bills online. Oftentimes, these assets have more personal value than financial value, but many of us access even our financial assets digitally. The problem is that digital assets, and thus our online presence, can often outlive us. Consequently, digital assets have become increasingly relevant in the estate planning context.

Typically, an individual’s non-digital assets are disposed of at death through a Will (or Revocable Trust). The named Personal Representative (Executor) is charged with marshalling and distributing the individual’s assets in accordance with his or her Will. Digital assets, however, are usually governed by a contract (i.e., Terms of Service) rather than by a Will at death. The Terms of Service are the rules you agree to abide by when acquiring a digital asset – usually, the box where you click “Yes” or “I agree” when you create an online account. Historically, Terms of Service have been strict in denying named Personal Representatives post-death access to accounts, even if the user provides authorization in his or her Will.

Equally important to providing access after your death is the ability to grant access and control of your digital assets if you become incapacitated. Unless the applicable Terms of Service allow an appropriately designated individual (such as an attorney-in-fact under a Power of Attorney or a court-appointed guardian) to access the digital asset, it may prove difficult if not impossible for your loved ones to manage that particular asset if you are incapacitated.

Because of the increasing presence of online accounts, there has been a movement toward providing users (or their loved ones) control of online accounts after death. For example, Facebook recently added a new feature that will allow you to name a “legacy contact” who can manage your account (and access photos, posts and other profile information) or permanently delete it after your death. Google (including Gmail, Google+, Piscasa, etc.) offers an “Inactive Account Manager” feature in which the user can name a “trusted contact” to access part of their account data or to simply be notified in the event your account is inactive for a certain period of time. Additionally, some states (including Delaware and Virginia) have enacted laws that give a fiduciary access to digital assets in certain circumstances. Many other states (including Maryland) have not yet adopted legislation, but bills have been introduced to provide access and control to a Personal Representative.

It is apparent that planning for a digital afterlife is becoming increasingly relevant – whether it be through the online service provider and/or through your estate planning documents. As such, it is important that your Will (or Revocable Trust) and Power of Attorney include a provision that will give your fiduciaries access to your digital assets to the extent permitted by law.

If you have questions about incorporating digital assets into your estate plan, please contact one of the attorneys in our Estates and Trusts Department at (301) 340-2020.

More Estate Planning resources:

Estate Planning Questionnaire

Estate Administration Checklist

Duties of a Personal Representative/Executor

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