Estate Planning for Digital Assets

Just as you put significant effort into developing arrangements for your physical assets, such as real estate and cash, it is also important you consider what will happen with your digital assets when you die. Digital assets are subject to very different laws than traditional assets and creating an estate plan for digital assets requires advanced knowledge of these changing laws, as well as basic estate planning principles. At the law firm of McCulloch & Miller, PLLC, our digital asset estate planning attorneys stay on top of all legal and regulatory changes to ensure our clients’ estate plans effectively address their unique needs as they pertain to digital assets.

Generally speaking, digital assets are those assets you own and are created and stored online. Under the Texas Revised Uniform Fiduciary Access to Digital Assets Act, a digital asset is an “electronic record in which an individual has a right or interest.” Some common types of digital assets include:

• Social media accounts,
• Photographs stored online,
• Domain names,
• Cryptocurrency,
• Online financial information,
• Blogs,
• Email accounts, and
• Loyalty program benefits (airline miles, hotel points, etc.).

Notably, a digital asset does not include the underlying asset to which it refers unless that asset is an electronic record. For example, while online financial information is a digital asset, the underlying financial asset is not considered a digital asset.

Including digital assets in an estate plan raises certain challenges. For example, unlike a physical asset, only the owner of digital assets knows the full extent of their digital asset inventory. Thus, it is important that you take certain steps when creating an estate plan for digital assets.

The first step is to make a list of every digital asset you own, including login and password information. Additionally, you should store this list with your other estate planning documents so your loved ones can easily find it as well as whether or not the assets are stored elsewhere (i.e. the Cloud). Keep your list updated, otherwise, you risk leaving certain digital assets in limbo.

Once you’ve identified all your digital assets, the next step is to outline what you would like to do with these assets after your death. Many digital assets have monetary value and are transferrable. Others may have significant sentimental value.

Effective estate planning for digital assets requires you to select a tech-savvy executor who has the technical know-how to carry out your wishes. This may be a different person than you select to administer other parts of your estate. For example, you may have online communications or photographs you do not want your entire family to see. If you want some of your digital assets to remain private until they are destroyed, you may want to name someone other than a close family member to arrange for their disposal. It is also essential that whomever you select to handle your digital assets keeps up-to-date with all changes in the law, as the laws governing privacy and digital assets are constantly in flux.

If you have digital assets that are not currently accounted for in your existing estate plan or do not yet have an estate plan, now is a good time to reach out to McCulloch & Miller, PLLC. Our veteran estate planning attorneys keep abreast of all developments related to digital assets and can help you create an effective estate plan for your digital assets. We offer all prospective clients a consultation, during which we will answer all your questions and provide you with honest advice about your options and which may be best for your specific situation. To learn more, and to schedule a meeting with one of our Houston estate planning lawyers, you can reach us at 713-333-8900 or through our online contact form.