SOCIAL MEDIA, ONLINE BANKING,

DIGITAL ASSETS, AND ESTATE PLANNING

October 16, 2023

Beyond an email address, chances are you have an account with Facebook, X (the platform formerly known as Twitter), Instagram, LinkedIn, YouTube, TikTok, Pinterest, Reddit, or one of many other major social media companies. Even if you are a holdout from social media, you likely still have an online account with your bank, doctor, or a financial technology company (think PayPal or Venmo). If you have a business, your business is also likely intertwined with online accounts and financial services. These accounts are just a few examples of “digital assets” which have become major staples of everyday life.

But what happens to a person’s email addresses, social media profiles, banking accounts, and other digital assets after passing away? Can an account holder transfer his or her account in a Last Will and Testament?

In 2015, the Uniform Law Commission published the Fiduciary Access to Digital Assets Act, which New York and then New Jersey adopted shortly thereafter. This Act provides the means through which estate planners can provide protection for their clients’ digital assets.

When a person signs up for an online account, they must check the box to indicate that they read, understood, and agree to accept the Terms of Service Agreement (TOSA). In a TOSA, there may be a clause that dictates what happens to the account upon the accountholder’s passing. Many TOSAs do not address the issue altogether, some outright prohibit a transfer, and others provide that the account holder does not own the account but merely holds a license to use the account.

Keep in mind, simply giving a family member or fiduciary the account information to access the account could run up against the Stored Communications Act (the “Act”). According to the Act, which makes it a federal crime to “intentionally access without authorization” a digital asset, if a TOSA limits who can use the account, it is illegal for anyone beyond those limits to access the account.

Furthermore, a TOSA may state that the provider has the right to change the TOSA at any time, and thus what was legal one day may become illegal the next day.

So how do you plan for your digital assets?

First, make sure you have all your accounts listed with the usernames and passwords or security questions, and put the list in a safe and secure place. It is also a good idea to make sure someone knows how to access this list in the event of death or incapacity.

Then, the easiest strategy is to make sure that your estate planning attorney has the relevant language in your Will, trust, and/or power of attorney that, as per your wishes, grants your family or fiduciary with either total, partial, or no access to your digital assets and online accounts. While providing access to these assets and accounts in a Will, trust, or power of attorney may not be enough to override a TOSA that prohibits such access, it could be enough to control access to your other accounts and it is evidence of your intent vis-a-vis your digital assets.

Another possibility is to research the online service provider and find out whether they offer what the statutes call an “online tool.” An “online tool” is an agreement between the online service provider and the customer that is separate from the TOSA. The “online tool” is a means by which the user of the account can direct and specify what is to happen to his or her account and to whom the account information can be released. Keep in mind, though, that whatever instructions you may leave in the “online tool” will supersede any contrary instructions in the Will. Thus, if you write in the “online tool” that only you and your spouse have access to an account, and the Will allows for a fiduciary to have access to the account, only the spouse and not the fiduciary will be granted access.

Another suggestion, particularly helpful for accessing digital assets and accounts containing substantial value, is to sign up for an online account and name a trust you have created as the account holder of the online account. This allows for future trustees to be able to access the account as they are all under the guise of the account-holding trust.

Lastly, you can also research the online service provider and see if they allow multiple people to access the account and add those individuals as accountholders.

Ultimately, without proper planning, it will be difficult for family members and fiduciaries to access those accounts and pose challenges to keeping the information secure from exploitative parties. Both financial, as well as sentimental, assets can be lost or inaccessible.

The attorneys at Pashman Stein Walder Hayden, PC account for their clients’ digital assets when preparing estate plan documents. If you are interested in our assistance, please contact our Trusts & Estates attorneys.

Learn more about our Trust & Estates and Elder Law & Special Needs Planning Practices.