Practical Considerations to Include Your “Digital Footprint” In Your Estate Plan

By Joshua Berkley
Attorney

Our “’digital footprint” encompasses everything from social media profiles and email accounts to photos and videos, as well as online banking information. As we navigate through the digital age, the importance of incorporating these virtual elements into estate planning has become increasingly apparent. Just as we plan for the distribution of physical assets, addressing our digital footprint in estate planning ensures that our online legacy is managed according to our wishes. This will help to safeguard both our personal and financial digital assets for future generations. This approach not only protects our digital identity but also provides clarity and ease for loved ones managing our affairs after we are gone.

Here are some helpful guidelines:

  • Inventory Your Digital Assets: Make a comprehensive list of all of your digital assets. This includes social media accounts, online banking and investment accounts, email accounts, digital photo libraries, domain names, and any other important online accounts or digital properties.
  • Understand Access Issues: Be aware of the terms of service for each digital asset. Some platforms have specific policies for handling accounts after the owner’s death. Therefore, it is crucial to be familiar with these details.
  • Designate a Digital Executor: Appoint a trusted individual to manage your digital assets after your death. This person should be digitally savvy and understand your wishes for each account.
  • Identifying Potential Challenges: The main challenges in managing digital assets after death include:
    • Passwords: Without knowledge of your passwords, your heirs may not be able to access your digital properties stored in smartphones, computers, or cloud services.
    • Data Encryption: Encrypted data requires a password to access, making it nearly impossible to retrieve without the correct credentials.
    • Legal Barriers: State and federal laws prevent unauthorized access to computer systems and private data. These laws could hinder your family’s access to your digital assets.
    • Privacy Laws: Federal laws restrict online service providers from sharing the contents of your electronic communications without your consent​​.

Preventive Measures:

  • Create a List of Digital Assets: Document all your digital assets, including where they are located and the necessary passwords, and inform your family members how to access them.
  • Understand Ownership Rights: Determine what you truly own and what you have licensed. This clarity is essential for the proper transfer of digital assets.
  • Back Up Data: Use cloud-based storage services for backing up important documents and data. Include digital copies of key documents and inform others where to find them.
  • Include Consent in Legal Documents: When drafting wills, powers of attorney, and trusts, include clauses that grant consent for service providers to release your digital communications to the appropriate individuals. This should also allow fiduciaries to manage your passwords​​.
  • Provide Access Information: Ensure your digital executor has the necessary information to access your accounts. This could include usernames, passwords, and answers to security questions. Keep this information secure but accessible to your executor.
  • Leave Clear Instructions: Clearly outline what you want to be done with each digital asset. For example, you may want some accounts to be deleted, some to be archived, or specific contents to be distributed to certain individuals.
  • Legal Considerations: Consult with an attorney to include your digital asset plan in your overall estate plan. This ensures your wishes are legally documented and can be executed.
  • Regular Updates: As you acquire new digital assets or as policies and laws change, update your digital estate plan accordingly.
  • Secure Storage: Keep your digital asset information in a secure location, such as a safe deposit box or with a secure digital storage service. Make sure your digital executor knows how to access it.
  • Consider Digital Legacy Services: Some platforms offer legacy or memorialization options. Familiarize yourself with these and decide if they align with your wish. 

Consult With a Kentucky Estate Planning Attorney About Digital Assets

Keep in mind that the management of digital assets in estate planning is a relatively new and evolving area, so staying informed and seeking professional advice would be valuable. Digital estate planning in Kentucky requires a comprehensive understanding of your digital assets, recognizing potential legal and technical challenges, and taking proactive steps to ensure these assets are accessible and transferable according to your wishes after your death. Berkley Oliver, PLLC has experienced estate planning attorneys who can help to make sure your digital assets are accessible and protected with the same care and guidance as your tangible personal and real property. Get in touch with our team today.

About the Author
Josh Berkley is an attorney and owner at Berkley Oliver PLLC who helps individuals implement plans to protect their assets and their loved ones. Josh focuses his practice in the areas of Estate Planning, Probate, and Elder Law.  From assisting young parents in making a plan to provide for their children, to helping senior clients qualify for Medicaid, Josh works with clients to create estate plans and life plans tailored to each person’s specific goals. He also helps clients with a wide variety of important legal documents such Wills, Trusts, Powers of Attorney, Healthcare Surrogate Designations, and Living Wills. If you have any questions regarding this article, contact Josh here.