Agents on the Cloud – Digital Assets Lost Without Planning

What is Rufadaa - Digital Assets and Estate Planning

Merrily we have drifted into the world of the internet while abandoning file cabinets, stripping picture albums and tossing piles of unwanted paper along the way. The lure of the cloud is impossible to ignore.

You alone hold the magic formula of logins and passwords and URLs where your treasures may be found.  Financial documents and accounts for banking, brokerages and cryptocurrency, frequent-flier and credit-card points, photos, blogs, social-media accounts, email, computer access – all of these are only a key-stroke away.

So what happens to all of these  digital assets when you die?  You won’t like this answer, but a lot of them will die with you.  Your secrecy could destroy your legacy.

If no-one can access your accounts, bills will go unpaid, which may lead to foreclosure or forfeiture of an asset. Cryptocurrency could be lost forever. Pictures and blogs may be completely inaccessible. Money in financial and bank accounts could end up escheated to the state. Credit-card points and unused miles could be gone with the wind.

Unless……… you take a moment now and do some planning.

Texas has actually made it easy for you. In 2017, it enacted a law called the Texas Revised Uniform Fiduciary Access to Digital Assets Act.

It is your lifeline, folks.

Under this law, your personal representatives, guardians, agents and trustees can access your digital information assets. You just have to help them a bit.

In your durable (financial) power of attorney, you can specifically give your agent the authority regarding digital assets. You may want to go the extra step by providing a reference to the law by name.

In your will, you can give your executor authority to access and manage your digital assets. Many attorneys who regularly do estate planning now customarily include this language. If, however, you have a will that was executed prior to 2017 you might want to pull it out and review it to make sure digital assets are specifically referenced.

Some websites allow you to name an agent who can access the site upon your death or disability. Do not contradict the terms of your POA or will by naming a different person as agent. And remember that websites can remove this feature by simply updating their terms.

Now for the real work: creating a list of digital accounts and online assets. You need this so that your authorized person can quickly gain access and prevent hackers and thieves who troll obituaries from trying to take over your accounts.

As a bonus, your list will alert your heirs about the existence of your accounts. Many an asset has been lost because no one else knew about it.

What do you do with your list once it is created? Some people print it and keep it with the rest of their estate planning documents. Other people keep it online with a password manager and then give instructions to a trusted individual on how to gain access to the master password. Never put the actual password in your will or trust, and never leave a printed list or master password unsecured.

What if technology changes from using passwords to requiring thumbprints or retina scans? Stay tuned.  

Virginia Hammerle is a Texas attorney whose practice includes estate planningguardianship and probate. Sign up for her newsletter at legaltalk@hammerle.com. Contact Hammerle Finley Law Firm to schedule a consultation at hammerle.com.

This column does not constitute legal advice.