As the complexity of online life continues to grow in our ever-connected society, it can be easy for people to overlook or undervalue the importance of planning to distribute their digital assets. Digital or virtual assets surround us on a daily basis. It includes the Facebook messages you sent, your credit card reward points, and even the movie you downloaded from Amazon to watch on the plane.
While these assets vary widely in scope, they can hold significant economic and emotional value for your loved ones or business interests. So why are these important assets so often overlooked in traditional estate planning?
The Challenges of Accessing Digital Assets
It is a mistake to assume your loved ones can simply log in with your username and password. Websites can have security questions that loved ones may not know how to answer. Bank and work-related logins may ping the original user’s phone, and without access to the phone, the account becomes inaccessible. Or, worse still, the loved one may not even be aware that an account exists and may never discover the digital assets contained on that platform.
Additionally, two federal laws may prevent descendants with usernames and passwords from accessing their loved one’s accounts: the Computer Fraud and Abuse Act (CFAA) and the Stored Communications Act (SCA). The CFAA imposes both criminal and civil liability on those who access another’s computer, computer system, or network without authority or even just exceed their given authorization. The SCA goes one step further. It prohibits access to another’s computer without permission or access that exceeds the authorized scope. The SCA also prohibits a computer service provider (like Yahoo!) from disclosing electronic communications without the account holder’s permission.
Currently, digital assets are primarily governed by the user agreement on the appropriate website. This complicates issues because user agreements typically only allow the actual user to access their account. Each website provides its own unique way for a third party to gain access to an account. This means that figuring out what each website needs for a descendant to access an account can be extremely frustrating and time-consuming.
Georgia Law on Digital Assets
Georgia adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFDAA) in 2018. This law allows digital assets to be managed or transferred through a will, trust, or power of attorney.
In some cases, online tools can also control what happens if the user passes away. For example, Facebook’s legacy contact feature allows a designated person to post a final message on Facebook, download a copy of the original user’s shared content, and permanently remove the account.
Directions in either a will or a trust generally override the website’s terms of service; however, if the user has both a will or a trust and an online tool, the online tool takes precedence.
Practical Solutions for Protecting Your Digital Assets in Georgia
Thanks to Georgia’s RUFDAA statute, digital assets may be disposed of in a Will or transferred to a trust. However, these solutions may present their own unique practical problems. First, it is never a good idea to write down every username and password that someone possesses. This gives anyone with access to the list the ability to log in to every important website listed, from bank accounts to Twitter.
Additionally, Wills become public records, and a list of every username and password would soon compromise the purpose of writing them down in the first place. As such, it may be more prudent to create an independent digital access letter that lists usernames and passwords and is stored in a secure location. The Will would then reference this document, which would help with an unintentional disclosure when the Will is made public.
Another solution could be the use of a Digital Asset Protection Trust (DAP Trust). The individual would place the digital property, rights, and licenses (for the downloaded Amazon movie) into a revocable DAP trust. Because it’s revocable, the trust could be updated at any time with new passwords or security questions, and it would never become a public record, unlike the will solution. The trust would hold the licenses and rights to all the digital assets and could be transferred as soon as the triggering event occurs. However, this is still a developing point of law, and the use of an experienced Georgia trust attorney would be vital in this execution.
Work With an Atlanta Estate Planning Attorney
Digital assets are now a part of nearly every household. Planning ahead ensures your loved ones can access what matters most without legal or technical roadblocks. At Thrift McLemore, our Atlanta estate planning attorneys stay ahead of this evolving area of law to create tailored solutions that protect your online accounts and digital property.
Do not let your digital life disappear or create stress for your family. Call us today at 678-882-0830 to schedule a consultation with one of our Atlanta wills, trusts, and estate attorneys. We will help you build an estate plan that protects both your traditional and digital assets for the future.
