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Digital Assets And Your Estate Plan

Posted by Aubrey Carew Sizer | Feb 21, 2022

Many of the things that people own are intangible and only available through digital means, including information stored in the cloud, digital photos, social media videos, and some forms of intellectual property. What happens to these assets when someone passes away or can no longer make decisions about them? Without a properly executed legal plan, the owner or their family can be blocked from these assets. The Law Office of Aubrey Carew Sizer PLLC can help create an estate plan that protects these assets. If you would like help with digital assets and your estate plan, consider contacting our legal team today at (571) 403-2619.

What Are Digital Assets?

Under Virginia's Uniform Fiduciary Access to Digital Assets Act, a “digital asset” is defined as an “electronic record in which an individual has a right or interest.” The term “electronic” means “relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.”

Examples of Digital Assets

There are various types of digital assets. Some of the most common types of digital assets include:

  • Electronic communications, such as emails, text messages
  • Digital media such as music, videos, and books
  • Hardware like tablets, laptops, electronic storage devices, and flash drives
  • Information stored electronically, such as articles or books of your own creation in word processing programs, digital photos, videos, computer files, and information stored in the cloud
  • Digital storefronts like eBay and Etsy
  • Online checking, saving, investment, and financial accounts
  • Online credit card or utility records
  • Websites, domain names, and blogs
  • Digital wallets
  • Social media accounts, sch as Facebook, LinkedIn, Instagram, Snapchat, and TikTok
  • Bitcoin and other forms of digital currency like Dogecoin, Ethereum, and Tether
  • E-commerce accounts, such as PayPal, iTunes, and shopping accounts
  • Subscription accounts, such as Netflix, Hulu, and Amazon Prime
  • Travel rewards and online betting accounts
  • Data from smartphones, computers, tablets, or the cloud
  • Digital collections and non-fungible tokens
  • Intellectual property, trademarks, manuscripts, artwork, films, and graphic and audio files
  • Digital rights to literary, motion picture, musical composition, or theatrical works
  • Online video channels you own and monetize
  • Video game avatars and digital purchases
  • Online chatroom accounts
  • Cell phone apps
  • Gaming accounts
  • Loyalty program benefits, such as frequent flyer miles

Virginia Law on Fiduciary Access to Digital Assets

Virginia lawmakers have tried to reduce the complexity surrounding digital assets and your estate plan. They have passed the Uniform Fiduciary Access to Digital Assets Act, which includes provisions that let the custodian of digital accounts give the necessary access to executors to digital assets. However, this law does not prevent a person from making their own plans and leaving directions for how their digital assets should be managed.  

How to Create a Digital Estate Plan

You can follow these steps to create a digital estate plan:

Create an Inventory of Digital Assets

The first step is to account for all of your digital assets. This includes all of your online accounts, electronic devices, electronic files, and electronic communication. Then, make a written list in which you identify the asset and include all information on how to access the asset, such as:

  • Usernames
  • Passwords
  • Website
  • Secondary code
  • Instructions
  • Security questions and answers
  • You can follow these steps to create a digital estate plan:

Make Decisions Regarding Digital Assets and Your Estate Plan

After you are fully aware of all the digital assets you have and their approximate value, you will need to consider what you want to do with those assets. Think about what you would want to have happen to the assets if you passed away or you became incapacitated. Who would you want to receive your assets that have a monetary value? You might also need to review the terms of service of your accounts to see what your options are.

Some options for handling your digital assets might be:

  • Create a legacy account for social media accounts
  • Give the executor access to all digital assets
  • Appoint a more technologically savvy person as the digital executor
  • Instruct your executor to delete accounts, pictures, and files
  • Instruct your executor to archive or give away certain digital assets
  • Transfer revenue-generating assets to people who will manage the accounts and benefit from them
  • Redeem all credits and points
  • Shut down online accounts
  • Transfer online storefronts to specified individuals

You will also want to consider who you trust to manage your digital assets. You can name the same person you have named as the executor or personal representative in your will. Or, you can opt to have a different person manage the assets you specify if you think someone is more qualified or appropriate. If you are naming a separate person, you might consider working with an estate planning firm like The Law Office of Aubrey Carew Sizer PLLC so you can receive specific advice about the language you need to include in legal documents to ensure the person you named has the necessary access and ability to carry out your wishes.

Incorporate Digital Assets in Your Estate Plan

Once you have a better idea about what you want to do with your digital assets, you can start incorporating them into your estate planning documents, such as:

Last Will and Testament

Your last will and testament names who you want to inherit from you and what they should receive. Items of monetary value can be transferred via your will.

Durable Power of Attorney

Unlike with your will, a durable power of attorney is effective during your lifetime. Therefore, if you become incapacitated and can no longer manage your digital assets, your agent can follow the instructions you have left in your power of attorney document.

Trust

A trust allows a person to hold and manage property for the benefit of another. A trust can be effective during your lifetime and after your death if you draft it in that fashion. Your trust can instruct your trustee about what to do with your digital assets.

Contact The Law Office of Aubrey Carew Sizer PLLC for Help with Digital Assets and Your Estate Plan

The Law Office of Aubrey Carew Sizer PLLC can help with all aspects of digital assets and your estate plan. We can review your options and discuss how to safeguard your interests. Consider contacting our firm today at (571) 403-2619 to get started on your plan to ensure your digital assets remain safe.

About the Author

Aubrey Carew Sizer

Aubrey Carew Sizer is the Principal Attorney of The Law Office of Aubrey Carew Sizer PLLC, a Northern Virginia law firm providing representation for Wills, Trusts, and Estate Planning, Long-Term Care Planning, Guardianship and Conservatorship, Special Needs Planning for the Disabled, and Probate, Estate and Trust Administration.

Services

The Law Office of Aubrey Carew Sizer PLLC provides customized and affordable estate planning (including wills, living trusts, powers of attorney, and advance medical directives); elder law services (including long-term care planning, special needs planning for the disabled, and guardianships and conservatorships); probate, estate and trust administration (including advising executors and administrators of estates about post-mortem planning and the local probate process in Virginia), as well as general aging and disability advice in Northern Virginia, including but not limited to Arlington, Alexandria, Ashburn, Bristow, Burke, Centreville, Chantilly, Gainesville, Fairfax, Falls Church, Haymarket, Herndon, Leesburg, Manassas, Manassas Park, Reston, Springfield, Sterling, and throughout Loudoun, Prince William, and Fairfax counties.

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