Digital Assets: FAQs

It is becoming more and more common for people to keep things electronically and to accumulate a significant amount of digital assets/property.  While not all digital assets may be ‘valuable’ in the financial sense, they may be very valuable in the sense that they are personal and sentimental, and should be treated like other personal property. We are at a point where digital asset planning must be taken into consideration when thinking about advance life planning.

Recently, the Uniform Law Commission approved the Uniform Fiduciary Access to Digital Assets Act (“UFADAA”), which would allow a fiduciary to access an individual’s digital assets. A fiduciary can include a personal representative or trustee chosen by an individual, an agent acting under a power of attorney, or a court-appointed fiduciary. While the UFADAA has been approved, it has yet to be enacted into law by California. Several states have addressed some of the concerns with digital assets, but so far, only Delaware has enacted such a law1.  Although UFADAA s a great first step, we still have to grapple with conflicting online policies, such as that of some social media websites that prohibit the sharing of personal information.

Below you will find just a few of the questions our office has recently received on this topic.

Q: What are digital assets?

A: Digital assets/digital property encompasses a number of items, including: social media accounts; blogs; e-mails; online rewards programs; digital media, including audio, video, and image files; websites you control; cloud storage; financial and investment accounts; e-books; mobile applications and their data; and voicemails and text messages, among other things.

Q: Who can access my digital assets?
A: Every digital asset will have different rights and privileges associated with its access. Most online accounts and social media websites have their own terms of use as to who can access your account. In many cases, only you, the user, can have access. This becomes an issue when someone acting on your behalf tries to gain access to either the account or its contents.

Q: Aside from access, what are some of the other issues, that I need to be aware of concerning digital assets?
A: There are number of issues and potential impediments that can come up not only in the administration of a person’s estate, but also in the planning phase. Some of these issues may include:

  • Goals – What do you want to happen to your digital property
  • Inventory – Are you aware of all your digital assets? Do you have the login information for all accounts?
  • Asset ownership – Do you own your data and files? Does the online company own the data and files? Do you have a right to pass your digital assets/content to a third party?
  • Data storage – How long are your data and files stored? What happens to the data and files – do they get backed up/deleted/archived?
  • Synchronization – Do your data and files sync across multiple devices, for example, between your desktop computer and your laptop. or between your laptop and your mobile phone or tablet?
  • Agent/representative designation – Is your agent/representative tech-savvy enough to handle all of your digital property? Does your agent/representative know about all of your digital assets?

Q: How do I preserve my digital property?
A: There are several ways to preserve your property, such as having physical copies; creating backups; and making sure your designated agent/representative is aware of your property. For more detailed information, please read the Preserving Your Digital Assets article.

Q: Do you have any tips making the digital asset planning process easier?

  • Create and inventory
  • Update the inventory when adding or deleting accounts, and on an annual basis
  • Properly designate an agent to act on your behalf
  • Be aware of recent technological trends and advances
  • Properly store digital assets if using a physical mode of storage

Q: Where can I get more information?
A: If you want more information on taking care of your digital assets, please contact our office.

1 Farivar, Cyrus (arstechnica), Delaware becomes first state to give executors broad digital assets access. (Aug. 18, 2014)

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