Some people worry about leaving cash or family heirlooms to their heirs, but increasingly the most valuable items a person owns can’t be seen with the naked eye. Domain names, cryptocurrency, social media accounts, and electronically-stored photos and videos are just some of the highly-prized digital assets you might leave behind.
Unfortunately, data privacy laws and online user agreements can prevent your loved ones from accessing these precious materials. Our New York estate planning law firm explains the complicated landscape of digital assets and how to ensure your executors have the tools they need to carry out your wishes.
Barriers to Digital Assets During Estate Administration
In 2014, New York amended the New York Estates, Powers, and Trusts Law to include the administration of digital assets. The revised law outlines the powers that personal representatives and other fiduciaries have when accessing a person’s digital estate. In particular, it allows social media and online bank account users to designate a successor who may access their digital accounts after their passing.
While this removes several barriers for executors, fiduciaries can still find themselves running afoul of data protection and privacy laws when attempting to gather digital assets—increasing the risk of administration delays, identity theft, and an inability to unlock the deceased’s valuable assets.
Family members and personal representatives face several obstacles when trying to access a loved one’s digital assets, including:
- Federal and state laws. To protect consumers against fraud and identity theft, state and federal criminal statutes prohibit unauthorized access to private personal data. Unfortunately, the rules apply no matter who is trying to access the information and the reason for doing so. Federal statutes, such as the Electronic Computer Privacy Act and the Computer Fraud and Abuse Act, impose penalties for unauthorized access to digital accounts.
- Data privacy statutes. Many online platforms like Meta and Apple do not allow account access or the release of information to anyone other than the account creator. If you do not designate a trusted successor during your lifetime, your heirs may be permanently locked out of your social media sites, photos, emails, texts, gaming accounts, or other assets.
- Encryption programs. Encryption may add another layer of security to digital funds and information, but its inability to be decrypted without the correct passcode makes it a nightmare for executors. One typical example is cell phones that can only be opened with a valid passcode. If you neglect to note your password for your executor, any files that exist only on your phone might stay there forever after your passing.
Best Practices for Sharing Online Passwords and Login Information in a New York Estate Plan
- Provide consent in legal documents. Just as you would create an inventory of your physical assets, your estate plan should include a list of all online accounts. For every account listed, you must explicitly authorize the companies that hold their electronic data to release that data to their fiduciaries during incapacity and after their death. Provisions may be added to wills, trusts, or even your financial power of attorney.
- Create specific instructions. In addition to granting access, you should include detailed instructions for executors on what should be done with their contents and whether the account should be closed. For example, social media accounts could be archived, transitioned into memorial pages, or deleted.
- Keep files updated. We often stress the importance of keeping your estate plan up to date, but it’s essential for digital information that may change several times yearly. Instead of enclosing a list of usernames and passwords in your estate plan, create a secure file on your computer that contains the information. You may use a secure password manager program to store login credentials for your phone, laptop, tablet, or crypto wallet, as well as passkeys, security questions, and recovery options for online accounts. Then all you have to do is provide your representative with the password to unlock the file.
Let Us Create the Right Estate Plan for You
Landskind and Ricaforte Law Group, P.C. is committed to finding creative solutions to complex problems, ensuring that all your needs are met during estate planning. Contact us today through our online form to get started or read our free book, Estate and Medicaid Planning in New York: What Everyone Needs to Know.