Estate planning for digital assets

Question:

Estate planning books often discuss digital assets such as email, photos, and other items. But there’s an important issue about digital assets that seems to be rarely mentioned. In a will, digital assets are usually handled in one of two ways:

• Some wills give digital assets to beneficiaries in a specific bequest.
• If there is no specific bequest, digital assets go to residuary beneficiaries.

These arrangements usually don’t give the executor any discretion, which means the executor is legally required to distribute all digital assets to beneficiaries. But for many people, this is probably not what they want. At death, many people probably have digital assets they don’t want shared with beneficiaries, such as certain email messages they’ve sent or received. For my will, I would like to allow my executor to decide which digital assets are appropriate to distribute to beneficiaries based on his best judgement and taking into account privacy issues.

Would the following provision be suitable in a will?

Disposition of my digital assets is at Executor’s sole discretion. Assets may be deleted, distributed, or otherwise disposed of as Executor believes appropriate.

Response:

Yes, that makes sense. There are so many forms of digital assets and they change so often, that it’s difficult to make provisions for them in estate plans. Further, despite provisions in wills, sometimes executors and personal representatives cannot gain control of digital assets because access is governed by the contracts with specific internet companies — those agreements we all check off without reading. Many internet companies have their own provisions for naming a successor, so it’s worth checking on that for the places where you would like to give someone access, such as photo sharing sites.

In addition, there’s the question of what you mean by “digital assets.” There’s a big difference between your Facebook account and on-line access to your Schwab account, but they might both be considered “digital assets” if the term is not clarified. (And then there’s the issue of cryptocurrency.) I might add a definition of “digital assets,” along these lines:

Disposition of my digital assets is at Executor’s sole discretion. By “digital assets” I mean my social media, photo, dating, and email accounts, but not on-line access to my financial accounts. Digital assets may be deleted, distributed, or otherwise disposed of as Executor believes appropriate.

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