Why should I address digital assets in my estate plans?

Did you realize that merely having a valid will is insufficient? Most Americans do not have any written will. Those Americans who took time and effort to write a will most likely write a will concerning their tangible assets such as property, IRAs, 401(k)s, pensions, designated bank and brokerage accounts, valuables, and life insurance policies.

With or without a written will, intangible assets such as patents, copyrights, the company's brand, software, crypto accounts, miles, points, etc are often not addressed during probate. It presents a real challenge for most executors trying to deal with the estate of their loved ones.

Digital assets, accounts, and private data are among non-probate assets. However, it does not make them less important.  Every time we leave a digital footprint on a website, we give the company permission to own our private data according to the company’s privacy policy, terms, and conditions. So far, most of the states that passed legislation that gives some form of authorization to executors to access and manage digital assets and electronic communication after the death of an account holder. Nevertheless, many executors do not have time, money, directives, or a clear understanding of what needs to be done with those assets and accounts.

Nowadays, law firms do not routinely address online legacy because it is considered to be an intangible asset. With a lack of clear directives for executors to know what to do with each digital asset and account, private data will most likely stay online forever. It can lead to posthumous defamation, risk of identity theft, and inheritance conflicts, Moreover, in the age of emerging AI, posthumous privacy should be considered very seriously. Any private information that is left online after death is up for grabs and use. There are several risks that the executor with the lack of clear directives might face. One of them is as UNC School of Law noticed “the right to protect one’s reputation is a personal one and cannot be enforced by a third party.” Another is that our personal rights such as the right to privacy terminate with our death and are difficult to enforce.  Invasion of privacy is difficult to prove when the owner is dead because there is no direct injury to the deceased person's feelings. However, there can be serious harm done to the heirs of the estate in terms of non-discovering assets and accounts, defamation, and identity theft.

In conclusion, in our digital world and era, everyone should pay attention to what information they want to leave behind to protect their name, dignity, assets, heirs' rights, executors' time, and money.

Banta, Natalie. NORTH CAROLINA LAW REVIEW Death and Privacy in the Digital Age. 2016.