When making your estate plan, consider what you want to happen with your digital legacy—that is, all of your digital photos, music, social media accounts, emails, and other online accounts—when you die. As digital files and records have become embedded in our lives, and our online activity prolific, it's becoming vital to make a comprehensive plan for your digital assets. Below, we discuss how.
Your digital assets include any digital record you own, license, or control. Here are just a few common examples:
For more examples of digital assets, see What Are Digital Assets?
Some types of digital assets can be left through your will while others cannot. But regardless of whether the digital asset can be passed to someone when you die, it's important to make a plan for all of your digital assets.
Even if you're able to pass certain digital assets through your will, such as your digital photos, your inheritors may not be able to access them unless they have the necessary logins and passwords. If you didn't leave behind access information and the asset is important enough to your loved ones, they may be able to go to probate court to try to get access, but that process can be quite lengthy and can cost significant time and money. Lastly, even the probate court can't help them when it comes to some types of digital assets—like cryptocurrency—since no one else, not even the crypto platform, has the access keys.
Some types of digital assets can't pass through your will because you don't really own them. For example, social media accounts, domain name registrations, email accounts, and many other types of online accounts are "yours" by license only. When you die, the contract is over, and the business that administers the account controls what happens to it.
However, you can still affect the fate of these accounts fate to some degree: You can leave instructions describing your wishes to the person who will be wrapping up your estate (usually your executor). You may want this person to post a final message, close the account, delete your digital files, or save certain data that would be otherwise lost.
Lastly, as a practical matter, you'll usually make your executor's job a lot easier by providing access to your digital assets. Often, an executor is tasked with, among other things:
Tasks like these are often easiest performed online, and having access to all of your accounts can minimize the headache for your executor and loved ones. For more, see Why Your Executor Needs Access to Digital Assets.
To make a comprehensive plan for your digital assets allows your executor to access everything they need, take the following three steps.
The first step in creating a comprehensive plan for your digital assets is to make sure that your executor has the legal authority to access your accounts. The best way to do this is to give this broad power to your executor in your will. You might also want to take the additional step of designating your executor or another loved one as a legacy contact or inactive account manager for a particular account, such as your Facebook, Apple, and Google accounts. Not all major companies offer this option, and each company varies in what level of access it offers your legacy contact, but using it where it's offered can provide additional security in making sure someone has access.
To make a will that grants your executor the power to access your digital assets, try Nolo's WillMaker.
Next, make sure that your executor knows exactly what you want to be done with your online accounts. You want to take the guesswork out, so your executor isn't left wondering what you might have wanted to happen to your digital files and data. The easiest way to do this is to write your instructions in a letter and store the letter with your other estate planning documents. The letter doesn't need to be anything special (it won't be a legally binding document), so you can just write it on your word processor. Or consider using WillMaker's "Information for Survivors" document to leave these instructions.
What kinds of instructions might you want to leave? Below are a few categories of digital assets and some factors you might want to consider.
You may wonder what will happen to your social media account when you die. The answer is that it depends. Each company has its own policy on what to do with the accounts of deceased members. Some (such as Facebook) allows your loved ones to put the account into "memorial" status so that the account can still be viewed, and memorial messages may be left. Other companies will delete or deactivate the account. However, in most cases, if no one tells the company about the death, it won't know—at least for a while. This gives you a window to have someone make changes to your account after your death. For example, you could have your executor post a final status update or tweet. Or you could request to have certain things deleted from your account. Or you could ask your executor to delete the account altogether.
Like social networks, what happens to your email accounts depends mainly on the policy of the company that administers your account—for example, Google (Gmail), Yahoo, Microsoft (Outlook), or for your work email, your employer. At some point after your death—the timing depends on the company's policy—your account will be deleted. However, you could instruct your executor to send, delete, print, or archive emails before the account expires. Or you might want your executor to download your contact list for your loved ones. Maybe there's an email from your child that you think your grandchild would enjoy reading, or maybe there are certain emails that you would prefer to have deleted altogether.
If you belong to any online communities—such as a community listserv, chat group, or online book group—you may want your executor to notify them about your death or leave them with a final message.
Nearly all of us store music, photos, movies, or other digital files online or in the cloud, as well as on our personal computers, phones, and devices. With these digital files, you have two things to consider: how your executor will access the files, and what you want done with the files after they've been accessed.
If you don't leave access to your online storage account, eventually the account will be disabled and no one will be able to access the files. Some people might be devastated if this happened to the videos and photos they've taken of their families and friends.
If you own the contents of the files—which would apply to photos and videos you've taken, or music that you've purchased—you can use your will or living trust to leave these items to your friends or loved ones. Just describe them well ("all of my photographs of the Grand Canyon stored in my Google account") and make sure that your executor has the information needed to access the account and download the files. (More on this below.)
If you sell your wares on a site like eBay, Amazon, or Etsy, leave instructions for your loved ones about what to do with your store. If the company knows about your death, you won't be able to decide what happens to the account itself, but you should be able to leave all of the items you sell (as well as any profits that continue to come in) through your will or living trust. If you want someone else to run the store after you die, check your agreement with the administering company—your account may not be transferable. Instead, the new "owner" may have to open a new account.
Your executor will be forever grateful if you leave clear instructions about how to access your financial accounts and utilities online (see below). Your executor will need access to these accounts to pay bills and wrap up your estate. Also use your will or trust to leave the underlying contents of your financial accounts to your loved ones (such as the money in your bank account).
Lastly, and perhaps most importantly, you'll want to give login and password information to your executor so that when the time comes, they'll be able to actually get into your accounts. You definitely don't want to do this in your will (which becomes public record when filed in probate court). You can again use the same informal document you used to leave instructions for your executor (or WillMaker's "Information for Survivors" document) to leave an inventory of your online accounts and their logins and passwords. Or, if you currently use a password manager such as LastPass or 1Password to collect all of your login information, you can ensure that your executor has the master login and password.
If you choose not to leave login information, your executor may still be able to get limited access to some of your accounts. Most states now have laws that give your estate representative the power to request access to digital assets needed to wrap up the estate. However, doing so requires dealing with the probate court as well as the company that holds the information, which will undoubtedly add time and hassle to the process. And your executor won't get access to anything unrelated to wrapping up your estate. So there will be no access to many items of only sentimental value, such as specific meaningful emails, online journals, or online communities, which may have wanted your your loved ones to have. For all of these reasons, a thorough plan that includes instructions and access information will be an enormous help to your executor.
If you'd like to learn more about getting organized, see Getting Your Affairs in Order on Nolo.