CSG Law Alert: Digital Assets and Estate Planning

A constantly evolving topic for estate planners is digital assets. How does one plan long term for ever-advancing technology, and how can a fiduciary gain access to digital assets after a decedent’s passing? Years ago, a fiduciary would review a decedent’s personal paper files to determine the decedent’s assets. Now, with the increase of digital assets and the decrease of a physical imprint, a fiduciary may need access to electronic records that are stored on a decedent’s electronic device. Perhaps the fiduciary is not even aware of the decedent’s digital assets. Without proper planning, it may be extremely challenging for a fiduciary to gain access to this crucial information.


First, it is important to understand what are digital assets. There are three main categories: (i) information stored on an electronic device; (ii) online accounts such as email, social media and internet banking; and (iii) assets that exist on the blockchain.

  1. Information Stored on an Electronic Devices
    Electronic devices, such as computers, cell phones and tablets, often contain personal information like pictures, contacts and documents. These digital assets often have little to no economic value and are purely sentimental in nature.  Nevertheless, it is important to properly plan for these digital assets following death. Access often requires a password and if the fiduciary does not have the password, he or she will have difficulty accessing such digital assets.
  1. Online Accounts
    Even if a fiduciary has a password for online accounts such an email, social media and internet banking, it is important to be aware of the Terms of Service Agreement (TOSA). Free online accounts are typically owned by the internet service provider, referred to as custodians, and are licensed to the user during his or her lifetime. Upon the user’s death, the license expires and access to the account may be denied. When signing up for digital platforms, it is important to look out for traps within the TOSA. For example, two significant traps are (1) the automatic termination of an account upon death or (2) the fact that all property transferred to the provider website becomes property of the custodian (for example, photos uploaded to social media). Many TOSAs are governed by the Stored Communications Act (SCA). Absent consent from a user, a custodian’s disclosure of any digital communications governed by the SCA, including the content of electronic communications, violates the user’s privacy and may subject the custodian to liability. Even if a user has provided consent to the disclosure, the custodian may request that a fiduciary establish that the requested information is necessary for the estate administration and may require a fiduciary to obtain a court order.
  1. Assets on the Blockchain
    Assets that exist on the blockchain, including various types of cryptocurrencies and NFTs, may hold economic value. However, without proper planning, locating these assets after an owner dies and determining their value may be very difficult.


Almost all states have adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). The purpose of RUFADAA is (a) to provide fiduciaries with legal authority to manage digital assets and electronic communications and (b) to give custodians of digital assets and electronic communications the legal authority to deal with fiduciaries. The general goal of RUFADAA is to facilitate fiduciary access to digital assets while respecting the privacy and intent of the user. RUFADAA allows fiduciaries to manage digital property but restricts a fiduciary’s access to the content, including electronic communications, unless the original user consented to the disclosure of the content under the terms of their estate planning documents.

RUFADAA provides a three-tier priority system for determining a user’s intent with respect to any digital asset. The first and most effective way to provide access to digital assets is through an online tool directly with the custodian, often referred to as the inactive account manager. This will allow a user to designate an individual to have access to his or her account following the user’s death. Google’s Inactive Account Manager allows a user to designate a trusted contact who will have access to an account after a certain period of inactivity. A user can also choose to have his or her information permanently deleted after a certain period of inactivity. Facebook’s Legacy Contact allows a trusted individual to manage a decedent’s account or request that an account be removed, but the individual cannot access private messages or remove past posts. These designations would override any other designation, whether by Will, trust or other document.

The second tier for fiduciary access is to provide specific authorization under an individual’s estate planning documents. It is important that this authorization is provided in both a power of attorney and will/trust. If an individual does not want anyone to gain access to his or her digital assets following death, it is important that access be specifically restricted under such documents.

Lastly, in the absence of an online tool or proper estate planning concerning digital assets, the provisions of the TOSA govern, which often means a fiduciary will not be provided access to the digital asset. For example, Yahoo’s TOSA dictates that all accounts are non-transferable and terminate upon a user’s death. Therefore, even if someone has the password for a user’s Yahoo account, as soon as Yahoo learns of the user’s death, the account is terminated. If the TOSA does not cover an issue, default RUFADAA rules will apply. Under these rules, a fiduciary is not provided with the content of electronic communications, but rather a catalog of communications consisting of metadata such as the addresses of the sender and recipient as well as the date and time that the communication was received.


So, the million-dollar question is: how can a fiduciary locate virtual currencies or NFTs? Unfortunately, there is no simple answer. Individuals should advise their estate planning attorneys if they own virtual currencies and NFTs. It is critical to discuss access to the location of these assets, and in particular the storage location of the crypto keys, digital codes and passwords. Such information may be stored on digital devices or paper files that would typically be disposed of with the deceased person’s tangible personal property, so it is important that this information not be inadvertently distributed to a beneficiary in a manner inconsistent with the individual’s intent. A good option for crypto assets is to deposit the wallet with a custodian, which would allow for easier valuation and transfer at death.


Some recommendations for digital assets are: (1) consider utilizing the online tool option with your accounts, if offered; (2) discuss your wishes with your estate planning attorney so your documents will include language regarding your digital assets such as the extent of access that you wish to be provided to your fiduciary; (3) maintain a digital asset inventory, including accounts and passwords; and (4) utilize a password manager so only one password will be needed by your fiduciary.

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