Most people know that an estate plan is mainly used to pass on a home, car or bank accounts. But what about your email accounts, social media profiles or the thousands of family photos stored in the cloud?
In our digital world, these “digital assets” are frequently overlooked. This can create confusion and legal hurdles for your family, who may permanently lose access to your accounts.
What counts as a digital asset?
Digital assets are more than just cryptocurrency or online stocks. They include a vast range of online property, such as:
- Email accounts
- Social media profiles
- Digital photo albums and cloud storage
- Blogs or domain names
- Online financial accounts (e.g., bill pay, shopping)
The primary challenge is access. A legally binding “Terms of Service” (TOS) agreement governs every online account. These contracts often state your account is nontransferable and your access rights die with you. This means tech companies may legally refuse an executor’s request for access.
How New York law addresses digital assets
New York has a specific law that allows your chosen fiduciary, like your executor, to access certain digital information. However, this access is not automatic and follows a strict three-level hierarchy for consent:
- Online tools: Using a company’s tool (like a “Legacy Contact”) is the most powerful method. It overrides any conflicting directions in your will.
- Your estate plan: If no online tool is used, your will or power of attorney can grant authority to your executor. This is the second-best option.
- Terms of service: If you do neither, the company’s default TOS agreement applies, which usually denies all access to your fiduciary.
This legal priority means your online tool settings are the most important part of your digital plan.
Why a password list is not enough
Simply leaving a password list is not legally effective. Sharing or using passwords often violates Terms of Service and may conflict with federal computer access laws.
A comprehensive estate plan should include specific legal provisions for your digital life, coordinating online tools with your will. An experienced attorney knows how to properly include these and tailor them to your specific situation.
