Digital Estate Planning FAQs

A digital asset is generally defined as any electronically stored information or online account that you own, control, or have the right to access. These assets vary widely and typically fall into several main categories:

• Financial accounts: Online banking portals, investment apps, digital wallets, PayPal accounts, and cryptocurrency holdings (such as Bitcoin or Ethereum).
• Digital storefronts and business assets: E-commerce stores (like Etsy or Amazon seller accounts), website domains, monetized blogs, and intellectual property stored on cloud servers.
• Personal memories and communication: Email accounts, cloud storage repositories (such as Apple iCloud or Google Drive), photo libraries, and social media profiles (including Facebook, Instagram, and LinkedIn).
• Entertainment and loyalty programs: Streaming service subscriptions, video game accounts with valuable in-game purchases, and accumulated airline miles or credit card reward points.

Without explicit instructions and legal authorization, your family could face immense legal hurdles trying to access your online accounts after you pass away or if you become incapacitated.

Major tech companies have strict privacy policies enforced by federal laws like the Computer Fraud and Abuse Act. These companies will routinely deny access to grieving family members unless proper legal framework is established beforehand.

In California, the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) governs this process. RUFADAA allows you to grant legal authority to your executor or trustee to manage your digital assets, but only if you explicitly authorize it in your estate planning documents or directly through the online platforms.

Implementing a digital estate plan protects your family from losing access to sentimental family photos, prevents subscription services from continually charging your accounts, and reduces the risk of post-mortem identity theft.

Under California’s RUFADAA framework, a hierarchy determines who can access your digital assets if you pass away or become incapacitated:

1. Online tools: If an online platform offers a built-in feature to designate a legacy contact (such as Apple’s Legacy Contact or Google’s Inactive Account Manager), that setting overrides any instructions in a traditional will or trust.
2. Estate planning documents: If the platform does not have an online tool, or if you did not use it, the instructions written into your formal will, revocable living trust, or power of attorney take precedence.
3. Terms of service agreements: If you have not specified your wishes via an online tool or within your estate plan, the platform’s standard terms of service agreement will dictate what happens to your data. In most situations, these agreements default to permanently deleting the account and denying family access.

The digital device is the physical hardware you use to access the digital world, such as your iPhone, laptop, tablet, or external hard drive. A digital asset is the actual data or account stored on that device or held on a remote cloud server.

While leaving your physical laptop to a beneficiary in your will grants them ownership of the hardware, it does not automatically give them the legal right to bypass passwords or access the proprietary cloud accounts linked to that machine. Your estate plan must address both the physical device and the digital assets separately.

Writing passwords down on a piece of paper or including them directly in your will is highly discouraged. Wills become matters of public record once they enter the California probate court system, making any written credentials vulnerable to exploitation. Furthermore, passwords change frequently, making printed lists obsolete very quickly.

The safest strategy is to utilize a secure, encrypted digital password manager that features a built-in emergency access function. This allows you to nominate a trusted emergency contact who can request access to your password vault if you become incapacitated or pass away.

Alternatively, you can store a master password or a physical hardware security key in a secure location, such as a home safe, and provide your estate planning attorney or trustee with instructions on how to locate it.

Yes. You can draft your revocable living trust to include specific language that grants your successor trustee full authority to manage, access, modify, or delete your digital assets.

For financial digital assets, such as cryptocurrency or online investment funds, you can explicitly transfer ownership of those accounts to the name of your trust.

With regard to personal or social accounts, embedding robust digital asset provisions within the trust document ensures your trustee can legally interact with tech companies without violating federal anti-hacking laws.