Properly addressing digital assets in your estate plan (Voices)

Do you have accounts, records or information that are accessed using your mobile phone, through an internet connection, or by using a keyboard or through a touch-screen or tablet?

If so, those accounts, records or information are digital assets, and your estate plan must expressly authorize an “agent” or “fiduciary” to access them during incapacity or after death.

Nevada Revised Statutes (NRS) 722.110 defines “digital asset” as, “…an electronic record in which a natural person has a right or interest. The terms does not include an underlying asset or liability unless the asset or liability is itself an electronic record.”

Digital assets often have value to us as well as to our family members, beneficiaries or heirs-at-law, whether financial, historical or purely sentimental, and are therefore part of our estate.

Failing to address digital assets in your estate plan (or critical legal documents) may result in family members, beneficiaries or heirs-at-law being denied legal access and/or control of our digital assets during our incapacity or after death.

Some practical examples of digital assets include:

• Email Accounts: These are considered “gateway accounts” because they are not only a window to the past with digital records, they contain valuable communication and history, and they are often the retrieval route for other digital accounts or assets.
• Social Media Accounts/Apps: Facebook, Twitter, Pinterest, YouTube, Tiktok, etc.
• Photo-Sharing Accounts/Apps: Instagram, Shutterfly, Snapfish, Flickr, SnapChat, etc.
• E-Commerce Accounts/Apps: Amazon, Etsy, PayPal, Venmo, etc.
• Online Financial Accounts/Apps: ALL banks, E*Trade, Scottrade, Ameritrade, etc.
• Online Alter Egos: ANY retail store with online login (username and password).
• Security Information: Two-factor authentication, mobile phone PIN/passcode or password, cacial recognition, etc.

With the potential financial, historical and sentimental value of digital assets, it is imperative that one’s estate plan designate an “agent” or “fiduciary” to legally access, control, transfer or cause the closure of digital assets upon the incapacity or death of the owner.

Without the proper legal authority to access, control, transfer or cause the closure of digital assets upon the incapacity or death of the owner, an “agent” or “fiduciary” may be committing a crime.

Meanwhile, the Consumer Fraud and Abuse Act, 18 U.S.C. § 1030(A)(2) provides that it is a federal crime to access a computer and obtain information contained in a financial record of financial institution without authorization (preferably in writing) or when/by exceeding authorized access.

Nevada’s sister statute is found at Nevada Revised Statues (N.R.S.) 205.4765 (Unlawful acts regarding computers), which provides that it is a misdemeanor for any person to knowingly, willfully and without authorization: modify; damage/destroy; disclose; use; transfer; conceal; take/retain possession of; copy; obtain (or attempt to obtain) access to; or enter any data, program or documents inside or outside a computer, system or network.

No “agent,” “fiduciary” or family member should be consumed with concerns about committing a federal or state crime when accessing, controlling, transferring or closing digital assets, electronic records and information, or electronic accounts upon incapacity or after the death of a loved one.

Our Nevada Legislature is in agreement. In 2017, Nevada adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA 2017). The Act gives us specific language to include in our will, trust or power of attorney to nominate a “designated recipient” or “fiduciary” to access, control, transfer or close our digital assets upon incapacity or after death.

The Act also provides very specific procedures for companies to disclose digital assets or electronic records/information to a “designated recipient” or “fiduciary.”

If your estate planning documents are silent on the issue of digital assets; or if your estate planning documents don’t utilize the specific language provided in RUFADAA 2017; or, more generally, if your estate planning documents were created before 2017 and haven’t been reviewed since, you should seriously consider updating your estate plan to address digital assets, at the very least.

You do have digital assets. And, your digital assets do have value. You can and should bring your estate plan current by ensuring that it addresses digital assets. I would welcome the opportunity to be of service concerning this “technical” aspect of your estate plan.

Danielle L. Christenson, Esq., is a Partner and Managing Attorney at Heritage Law, A Division of Kalicki Collier, LLP. Danielle is licensed in Nevada and California, and focuses her practice on Estate Planning, Trusts & Wills, Trust Administration, Probate, and Guardianship.