Are Your Digital Assets Part of Your Estate Plan?

Digital assets as defined in the California Probate Code are “electronic record(s) in which an individual has a right or interest.” Cal. Probate Code §871(h) These accounts include your personal data stored in your computer or other digital devices, and your email accounts, blogs, or accounts with various social media portals such as Facebook, Twitter, Instagram, and/or LinkedIn. In addition, digital assets also include your assets of monetary value such as your online banking accounts, brokerage accounts, any domain name, PayPal or Venmo, and many more.

On January 1, 2017, the Uniform Fiduciary Access to Digital Assets Act (the “UFADA”) became effective in California. Prior to the UFADA, California law did not protect digital assets in accounts governed by the terms of service agreements between the custodian and user. Often under those agreements, family members would need user names and passwords in order to access loved one’s accounts.
Today, the UFADA permits online users to “allow or prohibit in a will, trust, power of attorney… the disclosure to a fiduciary of some or all of the user’s digital assets, including the contents of electronic communications sent or received by the user.” Ultimately, this allows your executor, trustee, power of attorney or court-appointed conservator to access your online accounts after your death. But, if the online tool allows the online user to create his or her own instructions regarding disclosure, then the user’s instructions will override a contrary direction by the user in a will, trust, and power of attorney. Cal. Probate Code §870 et seq.
In today’s digital world, the enactment of the UFADA is a huge step forward to protecting our digital assets. After all, most of our financial transactions and communications occur online. Proper planning, which includes planning for your digital assets, can save loved ones from the difficult or sometimes impossible task of retrieving records from online accounts.
Here at Chauvel and Glatt, we understand that your digital assets have sentimental and often monetary value to you and your beneficiaries. Do not forget about them when considering your estate planning. To find out how our estate attorney can assist you, contact us today.

Leave a Comment