These days our digital footprint can include email accounts, social media profiles, cloud storage, cryptocurrency, online banking, and electronic pictures. From tax returns to vacation photos, more and more of our lives are created and stored digitally. But what happens to those accounts when you die?
Digital assets are becoming an important topic for Utah families to consider during estate planning. Without proper planning your loved ones may have trouble finding accounts, opening important records, preserving sentimental data, or shutting down digital services.
Utah law allows fiduciaries (personal representatives, trustees, and certain agents) to access digital assets under certain circumstances. However, access is not guaranteed. The instructions you provide during your life can help ensure your digital legacy is handled according to your wishes. Utah’s current law can be found at the Uniform Fiduciary Access to Digital Assets Act, Utah Code Title 75A, Chapter 6.
What Are Digital Assets?
Under Utah law, a digital asset generally means an electronic record in which a person has a right or interest.
In everyday estate planning, digital assets may include things such as:
- Email accounts
- Social media profiles
- Online banking and investment accounts
- Cryptocurrency and digital wallets
- Cloud storage accounts
- Digital photographs and videos
- Websites and domain names
- Online businesses
- Subscription services
- Online payment accounts
- Digital documents
- Rewards or loyalty accounts
- Online marketplace accounts
Some digital assets have significant financial value. Others may have little monetary value but tremendous sentimental importance.
A family photo library stored only in the cloud, for example, may be irreplaceable even though it has no traditional market value.
Who Can Access Your Digital Accounts After You Die?
Fiduciary can include the personal representative of your estate, a trustee, your agent under a power of attorney, guardian, or conservator.
>If the person has died, their estate’s personal representative may be able to request that the company that hosts the decedent’s digital account disclose certain digital assets.
The provider may ask to see a certified copy of the death certificate, proof that the personal representative was appointed, information about the account, and/or proof that the deceased person agreed to allow this disclosure.
That is another reason why planning ahead can make administering your estate much easier.
Your Online Account Settings Can be Extremely Important
Online account providers are increasingly offering mechanisms through which you can designate what should happen to your account when you die.
Under Utah law, we call this an “online tool.” An “online tool” is something a user can use to provide instructions to an account provider about whether certain types of digital property should be disclosed to a designated beneficiary.
This section is very important because it says that if your online tool allows you to change or withdraw the direction at any time, then the direction you provide through the online tool trumps (“prevails over”) an instruction to the contrary in your will, trust, power of attorney, or other estate planning document.
In other words, your estate plan and your online account settings should not be independent of one another.
If you have previously designated a legacy contact, inactive- account manager, or other beneficiary through an online account service, you might consider reviewing that designation when you update your estate plan.
Can Your Will Address Your Digital Assets?
Yes.
Utah law permits you to include instructions in your will, trust, power of attorney, or another record that either allow or restrict a fiduciary from accessing some or all of your electronic data, including electronic communications, if an online service does not offer an available online tool or you have not elected to use the online tool.
With a properly executed estate plan, you can address issues such as:
- Who should manage your digital property?
- Which accounts should be preserved?
- Which accounts should be closed?
- Who should receive valuable digital assets?
- Who should have access to photographs and personal files?
- Should someone be authorized to obtain the contents of electronic communications?
- What should happen to websites or online businesses you own?
The right approach depends on the types of digital property you own and how much privacy you want to maintain after death.
Emails & Private Messages Aren’t Treated the Same
One key exception under Utah law is based on what type of information is stored electronically.
If your electronic communications include emails, direct messages, or other types of private communications, the email provider, direct messaging service, or similar custodian may need proof that the decedent consented to disclosure or a court order authorizing disclosure. The personal representative may also be required to provide certain documents to the account provider before they will disclose the contents of these communications.
Most Other Digital Assets Aren’t Subject to these Restrictions.
For all other digital assets, unless the decedent directed otherwise or a court orders otherwise, Utah law establishes a procedure for a personal representative to request certain digital assets and an index of electronic communications from an account custodian.
>Since Utah’s law distinguishes between electronic communications and other types of digital assets, providing your family member or friends with your passwords may not be the same thing as actually entrusting that person with the legal authority to manage your digital estate.
What About Cryptocurrency?
Cryptocurrency poses some unique estate planning challenges. Access to cryptocurrency may depend on private keys, seed phrases, hardware wallets, passwords, or other authentication. Unlike with a bank account, there may not be any institution that can retrieve or reset a lost private key. If heirs know that crypto exists but cannot access the crypto wallet, then the cryptocurrency could be forever lost to the family.
A digital estate plan should address both legal authority and the ability to actually access assets. Sensitive information like seed phrases or master passwords generally should not be written verbatim into a will that becomes public record. An estate planning attorney can guide you on how to safely memorialize where this information is stored and who should be allowed to access it.
What Happens to Social Media Accounts?
It depends. Each platform has its own process.
Some services allow you to “memorialize” an account. Others allow you to designate a person to manage portions of your account after death. In some cases, an executor or family member can request that the account be terminated upon presentation of proper documentation.
The key takeaway is that instructions you include in your estate planning documents should be consistent with any legacy or account management preferences you set through the platform itself.
Under Utah law, if you have provided a qualified direction through an online tool, that direction can OVERRIDE any conflicting instructions in your estate plan.
What Happens to Online Banking and Investment Accounts?
Just because an account can be accessed online does not mean that the underlying asset changes ownership.
>Utah’s statutory definition of a digital asset even excludes an electronic record that represents an underlying asset or liability unless that underlying asset or liability is itself an electronic record.
For instance, simply having the login information for a brick-and-mortar bank account does not give you the money that is legally owned in that bank account.
>Bank accounts, investment accounts, retirement funds, and other forms of property like these may transfer based on beneficiary designations, joint ownership arrangements, trusts, intestacy laws, and other estate planning strategies.
However, digital access is significant because a personal representative will still need to identify that an account exists and collect information about the account in order to administer the estate.
Can Your Executor Simply Log Into Your Accounts?
Doing so is not always advisable. Digital accounts are subject to state and federal law, the account holder’s directions, and the provider’s terms of service.
Under Utah law, properly appointed fiduciaries have certain rights regarding digital assets. However, those rights are not absolute. For instance, a fiduciary’s powers are generally limited by the fiduciary’s duty of loyalty and cannot be exercised to masquerade as the decedent.
A better course of action is to utilize the appropriate legal process instead of attempting to log into each of the decedent’s accounts.
Create an Inventory of Your Digital Life
One of the simplest steps you can take is creating a digital asset inventory.
Your inventory could identify accounts such as:
- Primary email addresses
- Cloud storage providers
- Social media accounts
- Financial institutions
- Cryptocurrency holdings
- Online business accounts
- Websites and domains
- Subscription services
- Digital photo libraries
- Payment platforms
- Important devices
You don’t always have to put the passwords themselves in the inventory.
The entry can simply specify the account and where encrypted login information is stored.
Ensure the correct individual is aware that the inventory exists and how to find it.
Don’t Forget Your Phones & Computers
While some digital assets are contained on remote servers, physical devices themselves can hold important digital information.
Under Utah law, a fiduciary who has authority over certain tangible personal property also has the right to access that property and digital assets located on the property, unless another law prohibits access or the fiduciary’s authority is limited.
Consequently smartphones, laptops, tablets, external hard drives and home computers may become important estate planning tools. Think about what information is stored exclusively on those devices and whether the individual you designate will be able to locate and access those assets.
What Can Your Representative Expect From Your Account Provider?
Your designated fiduciary’s right to access your information is only half of the equation. Even if your representative is legally entitled to your information, the account provider may have discretion regarding the method of disclosure.
For instance, Utah law allows a custodian to grant full access to an account, grant partial access that is sufficient for the fiduciary to carry out their duties, or provide a copy of certain digital assets the decedent had the ability to access.
In short, an executor may not automatically be granted unfettered access to an online account.
Why Digital Estate Planning Matters
If you die without including digital property in your estate plan, your loved ones might not even know it exists.
- Family photographs
- Important financial records
- Cryptocurrency
- Online business income
- Domains or websites
- Intellectual property
- Personal correspondence
- Cloud-stored documents
They may also unknowingly continue to pay for subscriptions or services.
Detailed instructions can help your personal representative or trustee locate, protect, distribute, or close down your digital assets.
Steps to Include Digital Assets in Your Utah Estate Plan
Start by doing the following:
- Make an inventory of your important digital accounts and assets.
- Identify which digital assets have financial or sentimental value.
- Review the legacy or beneficiary settings offered by important online services.
- Decide who you trust to handle your digital property.
- Make sure your will, trust, and power of attorney contain appropriate digital-asset provisions.
- Develop a secure method for storing passwords, recovery information, and cryptocurrency credentials.
- Review your plan regularly as accounts and technology change.
Because digital assets can evolve much quicker than traditional assets in your estate, they should be reviewed any time you make significant changes.
Talk to a Utah Estate Planning Attorney About Your Digital Assets
An estate plan should cover more than just houses, cars, bank accounts and other tangible property. In this day and age, financial records, cherished family memories, business interests and even correspondence may all exist solely in electronic form.
Utah statutes address the issue of digital property, but access to your online accounts may depend on instructions provided by the account holder, estate planning documents, the options provided by the service platform and the type of data stored.
At Larsen, Larsen, Nash & Larsen, our Utah Estate Planning helps families and individuals create comprehensive estate plans that cover both tangible assets and property that exists only online. Whether you are beginning estate planning or updating an existing plan, include your online accounts in your plan so that your loved ones will have an easier time managing your estate.
Contact Larsen, Larsen, Nash & Larsen to discuss your Utah estate-planning needs. Our attorneys at Larsen, Larsen, Nash & Larsen, are committed to preparing you for the future and care of your digital assets. For more information on our full array of services, call Larsen, Larsen, Nash & Larsen at (801) 964-1200 or contact us online to schedule your free consultation.
