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Atlanta Estate Planning, Wills & Probate | Siedentopf Law

Creating a Digital Assets Estate Plan

You know exactly who should get your grandmother’s ring and how you want your retirement accounts distributed. But what about the rewards points you’ve collected on your credit card? 

Who will have access to your emails, your social media accounts, or your text messages? Will anyone be able to download all the photos you’ve taken and stored on your smartphone?

Unless you’ve opted out of the last 50 years of technology, you have digital assets. Creating a digital assets estate plan is the smartest way to make sure they’re handled as well as the rest of your estate.

 

What is a digital asset?

A digital asset is information about you or owned by you that exists in digital form. It can be anything from your email account (and all the emails saved there) and your airline travel points to cryptocurrency or patents. 

 

How does Georgia law treat digital assets?

In Georgia, a fiduciary of an estate (generally, the executor) may have some rights to digital assets even without a digital assets estate plan. But there are limits. 

An executor can manage digital assets like computer files, virtual currency, or websites. However, Without express written consent by the owner (now deceased), they cannot access things like email accounts, social media accounts, or text messages. 

An executor who believes they need access to those accounts to wrap up the estate and does not have consent can petition the court to allow access. 

Regardless whether the deceased gave consent or not, custodians (the companies that store the data — think: Google or Facebook) have rights as well. They don’t have to turn over any digital asset if doing so doesn’t comply with their term-of-service agreement. They can charge compliance fees. They can refuse requests if they find them unduly burdensome. 

Having a digital assets estate plan creates a better chance that your executor will be able to handle your digital assets according to your wishes. 

See: Estate Planning for Business Owners

 

4 steps to create a digital assets estate plan

If you’ve ever had that challenging experience of trying to get into an account and you can’t remember the password, then you have an inkling of what your loved ones might face. 

The average person has approximately 100 online passwords. Will your family members be able to get into the accounts restricted by those passwords? 

Step 1: List your digital assets

Make a list of every digital asset you own and how to get access to it. This could be everything from a social media account to cryptocurrency. 

It may help to think of digital asset categories so you don’t leave off anything important:

  • Actual digital hardware, like your smartphone, your computer, hard drives, flash drives, and memory cards
  • Online accounts, including your email account, social media account, messaging apps, online storage accounts, and loyalty programs
  • Digitally stored information, like photos and videos, documents, even emails and texts 
  • Domain names, websites, or blogs that you manage or that bring in revenue
  • Cryptocurrency or non-fungible tokens (NFTs)
  • Intellectual property, including copyrights, trademarks, or patents

Next to any asset that you want someone to be able to access if you die or become incapacitated, include the necessary login or access information. Password manager programs can make the process simpler for your executor. These programs require only one master password to retrieve all your saved passwords. 

 

Step 2: Explain how you want your assets handled

Do you want your executor or your loved ones to memorialize or remove your social media accounts after your death? Do you want them to have access to your email account? 

If you have digital assets that bring in revenue, how should that revenue be distributed? 

Are there any accounts or assets you want closed or destroyed without anyone accessing them?

Explain your wishes so that an executor can carry them out to the best of their ability in accordance with the law. 

See: How to Set Up a Living Trust

 

Step 3: Name a digital executor

You may choose to have your estate’s executor act as a digital executor. However, if your digital assets are particularly complicated or if you want to keep them separate from the rest of your estate for some reason, you may want to name a different digital executor. 

Step 4: Store your plan in a safe place with your other estate planning documents

You can store your estate planning documents with your attorney, in a locked safe or file cabinet, or in a secure online storage platform. Make sure any people who would need them know where they’re stored and how to access them.

One note of caution here: do not include your digital estate plan in your will. Most wills go through probate and become public documents after the person who wrote them dies. Instead, refer to your digital estate plan in your will. That way the contents are private, and you can update it as necessary. 

We help individuals and families create thorough estate plans — including digital assets estate plans — to ensure their assets are protected and their loved ones are cared for long into the future. Schedule a phone or video consultation online