How Can You Ensure That Digital Assets Are Covered in A New York Estate Plan?

So, you wanted to be a fiduciary.  The brochure made it sound really cool.  You were getting a title, maybe multiple titles – be it “Trustee”, “Executor”, or “Agent under a Power of Attorney.”  You would be organizing assets, making decisions and executing instructions for the benefit of a loved one.  Piece of cake.   In your head, you could envision the different asset classes that you were tasked to handle.  A bank account here, some real estate there.  Nothing to worry about.  Then, your friendly neighborhood elder law attorney decided to mention “digital assets.”    

Digital assets.  I am not talking about the CD-ROMs that AOL mailed to your house in 1996.  The list is long and getting longer.  (Deep breath)….and here we go:  websites, blogs, email accounts, text messages, online group memberships and history, monetized and non-monetized YouTube accounts, Etsy and eBay stores, Paypal/Venmo accounts, X, Facebook, Instagram, Spotify, Podcasts, Yelp, Shutterfly and other photo libraries, online subscription and streaming services, cloud storage, Google Docs, Yahoo and AOL legacy data, digital IP rights to original content, Gaming data – Roblox, Minecraft etc, online securities trading and marketplaces, Draft kings and other online betting accounts, digital and crypto currencies, assorted blockchain resources, NFT’s, and AI resources. 

Third parties, such as Fiduciaries, used to be denied access to an individual’s digital assets if a terms of service agreement failed to include a legacy option.  A 2016 law passed in New York State, the Revised Uniform Fiduciary Access to Digital Assets Act, gave fiduciaries access to digital assets.  But authorizing access in a Will, Trust or Power of Attorney is only step 1.  Estate planning for digital assets requires thorough instructions.

Wills, Trusts and Powers of Attorney are not suitable instruments for listing usernames, passwords, tokens, login and recovery information.  Wills are public documents that are searchable.  POA’s are also searchable public records when they are recorded in a County Clerk’s office.    A better way is to include a general list of digital assets in your estate planning documents, then draft a Letter to My Fiduciary which can expand on the information necessary to obtain those digital assets.    

A Fiduciary needs to prioritize.  Monetized accounts, online stores and Intellectual Property must be safeguarded first.  Cancelling subscriptions and automatic withdrawals follows closely behind.  Preservation of photographs, videos and gaming avatars are meaningful legacy markers to different generations.  Cloud storage of legacy data with physical back-up makes sense for now.   An effective Fiduciary will use the tools available to them to ensure that digital assets are protected and can provide a solid return on investment.  Online business dispositions will also have to be paired with continuation of business language contained in estate planning documents.  State and Federal tax filings, corporate or LLC entity reviews may also be required.

Fiduciaries have two choices:  Hover over a loved one and unplug their computer to stop them from signing up for any more online services or work with that same loved one to complete an organized digital asset estate plan.  I really like the hover idea, but it goes against our best practices.  Contact the professionals at The Feller Group, P.C. today for more information on Digital Asset planning.        

Assets Are Covered in A New York Estate Plan?