You can pass some types of digital assets through your will, but most digital assets transfer in other ways, or not at all.
The term digital assets refers to all of the digital files and online accounts you own and use on your computers, phones, tablets or other devices. Digital assets include social media accounts, digital photos, email, online financial accounts, software and copyright licenses, and many other types of less-than-tangible goods and services.
Learn more about What Are Digital Assets?
As a general rule, all digital assets that you own and that are transferrable will be included in your estate when you die. You can use your will to determine who will get such digital assets. Transferable digital assets certainly include anything that is worth money, but they also include things that may have a more sentimental value. If you own it and you can transfer it, you should be able to include it in your will.
If you don’t name a specific beneficiary for these digital assets, they will pass to your residuary beneficiary or beneficiaries.
You may also be able use your will to transfer digital assets that you have licensed, like a domain name or a copyright, but this depends on whether the terms of the licensing agreement allow transfer at death. Check your agreements, and see a lawyer if you have concerns.
Practically speaking, most of your digital assets won’t pass through your will – usually because you do not have the right to transfer them. Even if they have a real value to you or your family, if you do not own them or have the right to transfer them at death, you cannot pass them through your will. A clear example of this is your email and social media accounts. You do not own those accounts, you just have a lisence to use them -– and your inability to transfer your account to another person is “clearly” limited by the terms you agreed to when you opened the account.
Examples of digital assets that won’t pass through your will:
If you care about what happens to your digital assets, you should make a plan for what happens to them after you die. Whether or not the assets pass through your will, you can give your loved ones the information they will need to go into your accounts and files and make the change you want. If you do not leave them instructions and access information, they will not know your wishes and there is very little chance they will be able to get into your accounts.
The simplest way to leave instructions is to leave explicit log-in information and directions about what to do in a letter. You can do this in a simple word document, or you can get help from a program like WillMaker. Keep the letter in a secure place and make sure someone – ideally your executor – knows where to find it. Leaving clear instructions will help your loved ones follow your wishes, and your executor will have an easier time wrapping up your estate.
For help thinking about what you might want to do with your digital assets, read A Plan for Your Digital Assets.
Your executor – the person who wraps up your estate after you die -- will likely need access to your digital assets, even if none of them pass through your will. Your executor may need access to your digital assets to:
Read more about Why Your Executor Needs Access to Your Digital Assets.
However, although your executor might need access, it will be almost impossible to get access if you don’t leave log-in information. This is because in nearly all states, executors have no legal authority to access a deceased persons digital assets – even if you use your will to give them explicit authority over them. And practically speaking, even in the few states where executors do have some legal authority, executors will likely encounter strong resistance from the companies that manage the accounts and files.
The best thing you can do to help your executor is to leave clear instructions and access information about your digital accounts. (See above.)
See a lawyer if you want to restrict your executor’s access to your digital assets. Most states are increasing the rights of executors to access the digital assets of the deceased. As these laws develop, they could eventually make it possible for your executor to get into to your accounts even if you don’t leave your log-in information. If you have digital assets that you don’t want your executor to access, get help from an experienced estate planning lawyer who can help you protect your privacy.