Digital assets are exploding. According to NordPass, the average person now has 168 online accounts, and that list is growing all the time — in both volume and value. A new survey from Bryn Mawr Trust found that Americans estimate an average value of $191,516 in digital assets; yet, 76% of them still have little to scant knowledge of digital estate planning. More problematic, many advisors still do not acknowledge digital assets as a general asset category to address with clients. As a result, many estate plans inadequately address — or completely ignore — access to and the disposition of digital assets. 

Digital assets, at a high level, include: digitally stored documents, email accounts and electronic communications, loyalty program rewards and airline miles, photos and videos, social media accounts, cryptocurrency, subscriptions, online businesses, other digital interests, and accounts controlled by service providers. They all now demand proper estate planning.

Why does any of this matter? Overlooking digital assets leaves the legal representatives of the estate (i.e. executor, administrator, and personal representative):

• Potentially locked out of valuable digital assets and accounts, resulting in a direct financial or sentimental loss to the estate and its beneficiaries.
• Spending countless hours and resources trying to gain access to said accounts.
• Dealing with exposed personal identifiable information from the decedent’s various online accounts, leaving them vulnerable to identity theft and other cybersecurity risks.

In addition to failing to comprehensively serve evolving client needs, a lack of planning in this area could expose attorneys and other advisors to potential future liability. How to access and transfer digital assets should be a standard part of every client conversation for the modern estate planning advisor. 

Digital assets are more ubiquitous and valuable than ever, so why does a large swath of the estate planning community still lag behind in addressing this critical area? 

This generally stems from a lack of understanding of:

• The prevalence of digital assets in most clients’ lives;
• The potential negative impact if these assets are overlooked;
• How to address this topic with clients;
• How to effectively incorporate digital interests into estate plans and accompanying materials; and
• Where to turn to for technical guidance and support.

The following general guidelines are aimed to help estate planning advisors better understand this developing area and begin to guide clients through the digital estate planning process, in order to protect clients, their legal representatives and beneficiaries, and our practices:

1. Educate Clients on the Importance of Digital Asset Planning

Most clients don’t realize the risks of ignoring their digital behaviors and footprint. In fact, you have probably heard some say:"I don’t have any digital assets." 

Further, many advisors and clients operate under the ill-advised assumption that, if they don’t own any cryptocurrency, then they don’t have any digital assets. However, the reality is the majority of people have a plethora of digital assets and accounts. Whether they realize it or not, our clients are creating digital footprints in a multitude of ways, every day, often without a second thought. As technology progresses, our digital and physical lives are reaching new levels of entanglement. 

So, if a client has, at a minimum:

• Photos or videos on a device or in a cloud
• Email accounts (and other online electronic communications, Slack, Google Chat, WhatsApp, etc.)
• Social media profiles
• Online banking, utility, or shopping accounts
• Cloud storage (Google Drive, iCloud, etc.)
• Loyalty programs or airline miles

…they are accumulating digital assets, accounts, and interests that require protection and planning.

Many clients may also now have an interest in or accumulate:

• Domain names and websites
• Digital works, recordings, and content (artists and creators)
• Ecommerce and other online businesses (i.e. Etsy, Amazon, etc.)
• Cryptocurrency, NFTs, and Forex
• Gaming tokens
• Metaverse or other virtual property
• Avatars, digital twins, and personalized bots (and customized AI large language models)
• Name, image, and likeness (NIL) considerations, where applicable

… which require even more protection and planning. 

The diverse categories of digital assets above demonstrate why it’s important to ask clients questions about their digital behaviors as part of the standard estate planning conversation. Here are a few examples of questions to help initiate the digital asset planning discussion: 

• Do you use online bill pay for any of your recurring expenses? 
• Who handles this in your household? 
• How many personal email accounts do you use? 
• How much shopping do you do online? 
• What are your three most important digital assets? 
• How do you store photos and videos? 
• Do you use social media? 
• What, if any, important information do you still receive through traditional mail? 
• If something suddenly happened to you, is there information in cyberspace or data in a device that would need to be accessed to help administer your estate or that you would want to be transferred to a certain individual or deleted? 

These questions are just the beginning of the conversation and can provide a wealth of information to direct the structure of the digital asset aspect of the plan, which should be based on the needs and desires of the client. 

2. Help Clients Inventory Their Digital Assets

Most clients underestimate the size of their digital footprint. Beyond social media and email, they often have a mix of valuable, sentimental, and potentially vulnerable digital accounts with personally identifiable information that need managing. As part of gathering general asset and liability information for a client at the beginning of the planning process, collecting information regarding digital assets, accounts, and devices and understanding digital behavior should be standard practice. 

There are online services to help you handle this, but here are some tips if you want to do-it-yourself:

Start with Hardware

An inventory should have an area for clients to list all devices that store data, access online accounts, or store biometric information:

• Computers & Laptops
• Smartphones & Tablets
• External Drives, Flash Drives & Hard Wallets
• E-Readers, Digital Cameras & Music Players
• Wearables, Smart Glasses & Gaming Devices
• Alarms & Smart Home Systems

Tip: Even old devices may store sensitive data that requires attention and protection.

Include Stored Data

The inventory should go beyond hardware and map out where digital files reside:

• Cloud Services: Google Drive, iCloud, Dropbox, etc.
• Local Drives & External Storage: Hard drives, SD cards, USBs
• Backups & Archives: Time Machine, Windows Backup
• AWS Drives and Services
• Applications

Many clients and advisors overlook the personal and financial data tucked away in the cloud, applications, or on forgotten drives. Where is that manuscript? Where are all the family photos and videos stored?

List Online Accounts & Digital Assets with Monetary or Sentimental Value

The inventory should also include all online accounts and digital assets with monetary or sentimental value, as this is where assets can be overlooked, which could result in financial or other loss. Encourage clients to list:

• Email Accounts: The gateway to most digital assets and accounts in a paperless world.
• Social Media: Facebook, LinkedIn, Instagram, etc.
• Financial Platforms: Banks, PayPal, Venmo, Wallets/Exchanges
• E-Commerce & Subscriptions: Amazon, streaming services, food delivery
• Utilities & Loyalty Programs: Household bills, airline miles, hotel points
• Cryptocurrency (date acquired, purchase price, type, blockchain, method stored, public exchange/self-custody? If self-custody, how held [hot storage/cold storage]? How are keys/recovery seed phrases stored?)
• NFTs (date acquired, price, blockchain, internet location, transfer rights, royalties, etc.?)

Pro Tip: Have them scan emails for receipts and password reset links to uncover forgotten accounts.

Flag Web-Based Assets & Intellectual Property

For entrepreneurs, creators, or side hustlers, dig deeper:

• Domain Names & Hosting Accounts
• Websites, Blogs & Online Stores (Shopify, Etsy, and Amazon)
• Creative Works: Copyrighted materials, trademarks, code, art, photography, etc. 

Having an inventory of the digital assets and accounts of a client stored in a safe location will save significant time and expense in the future. It is also important to periodically update the inventory as digital interests change and expand. Sharing this type of information is prohibited under several federal laws, such as the Computer Fraud and Abuse Act and the Stored Communications Act. 

3. Help Clients Set Wishes For Each Asset

Not all digital assets and accounts should be treated equally. Digital asset planning cannot be done using a one-size-fits-all approach. Digital assets and behaviors can vary widely among clients, much like general planning needs for traditional assets. 

For instance, some clients will want to preserve family photos or social media accounts, while others may want certain accounts deleted for privacy. It’s important to note: even if digital assets and accounts can be legally accessed by an estate representative, legal access does not equate to actual use, and oftentimes, additional pre-planning measures are required to provide instructions on how to use digital assets or what to do with them once accessed (i.e. an Etsy shop or small online business with intellectual property). This type of use information is not customarily included in the legal documents in an estate plan and instead should be provided through instructions manuals, a tech management plan, or other user related information as part of the overall planning process. 

Others clients still may want to liquidate and transfer crypto assets to their estate representatives, which can require additional technological expertise and assistance, and the timing of this can also have potential tax and valuation implications. Cryptocurrency poses its own set of unique planning challenges, which can vary depending on the type of crypto and how it is held (i.e. public exchange or self-custody [which can also take on various forms]) and planning for this type of interest will be further addressed in a future article.

It is important to discuss the following considerations with clients:

Access/Transfer

• Can the digital asset be legally transferred or does the user only have a lifetime license?
• Can the digital asset be legally owned or accessed by a trust?
• Are there revenue-generating accounts, cryptocurrency wallets, or loyalty points that should be preserved or transferred to the estate?
• Should online businesses or websites be transferred to a successor or closed and how are these activities being supported during transitional periods?
• What information is going to need to be immediately accessible to legal representatives in the event of sudden incapacity or death?

Preserve

• Should sentimental assets like family photos, records, videos, or social media profiles be archived for future generations? Who should be the recipient(s)? Should these digital memories be saved in other formats to ensure ease of access?
• Is there any intellectual property, like creative works or digital art, that need to be preserved?
• Are there recurring subscription fees for software, programs, or platforms connected to or necessary to use/access the digital interest? 
• Is the digital asset or interest located online or contained in a computer, device, or hard drive? How are items of tangible property that can have intangible digital components handled in an estate plan?

Close

• Which accounts should be permanently closed or scrubbed to protect privacy, such as unused subscriptions, wearables, or social media profiles?
• Is there any sensitive data that should be wiped, like email accounts or online shopping accounts, or data on a device to prevent identity theft?

Be Aware of Online Tools & RUFADAA Compliance

As part of this conversation, clients must also understand the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), a law adopted by most states to regulate access by a fiduciary (i.e. executor, administrator or personal representative of an estate, trustee of a trust, agent under power of attorney, and guardian of an incapacitated person’s estate) to the digital assets and accounts of a user. Under RUFADAA, users must explicitly authorize fiduciary access based on a three-tier hierarchy:

1. An Online Tool (an agreement between the user and a service provider separate, which provides directions for the disclosure or non-disclosure of digital assets)
2. Estate planning documents that address fiduciary access (if an Online Tool is not available or used); and 
3. Terms of Service Agreements (TOSAs) apply if neither of the first two exist. However, many TOSAs restrict or prohibit asset transfers or are silent on fiduciary access, often requiring a court order for access in many situations. 

Even if fiduciary access provisions are incorporated into an estate plan, some service providers may still require a court order authorizing access before it is provided or may limit access to certain information. For example, electronic communications, such as the contents of an email, are subject to a heightened standard of privacy under RUFADAA and access must be specifically authorized in estate planning documents or an Online Tool to be disclosed. Obtaining court orders to access digital accounts can be time consuming and expensive — increasing the importance of clear instructions and directives for digital assets to reduce delays and potential legal hurdles. 

In addition, identifying accounts where Online Tools have been utilized is important to include in the digital asset inventory. The use of an Online Tool is similar to a beneficiary designation for traditional assets (i.e. retirement plans, investment accounts, and life insurance policies) without the well-settled law to invalidate designations in a variety of situations. Using Online Tools has many benefits and can streamline access, but should be done with great care and reviewed as part of an overall estate plan.

Additionally, new tech solutions have entered the marketplace to help advisors and clients manage digital estates and legacies. These platforms offer inventory tools, secure storage, and digital memorialization services. Such platforms can help reduce legal hurdles, ensure a secure and seamless transition of digital assets and important information, and better serve future estate representatives and practitioners as they carry out the client’s wishes. 

4. Partner With Tech-Savvy Professionals & Advisors 

The transfer and access of property, including digital assets (that are not controlled by an Online Tool or TOSA), is carried out through the estate administration process, and what a fiduciary is allowed or prohibited to do is determined by jurisdictional estate and fiduciary laws and the provisions of a will or revocable trust. 

Unlike physical assets, which can often be easily identified and transferred, digital assets may be protected by passwords, encryption, and privacy policies. They could also have complicated technological components, making them difficult to access without the help of seasoned experts. 

While some clients have more complicated technological needs, one solution to address this situation is to empower the fiduciary to be able to hire technology experts to assist with administration of the digital estate. 

Another option is to appoint a technology advisor or committee in the planning documents for the fiduciary to utilize. Technical advisor appointments can define the scope of the advice to be provided, requisite technical expertise aligned with a specific digital asset, and include discretionary powers that can be modified by the fiduciary. 

Lastly, estate advisors should be familiar with different types of advisors to serve their clients digital interests and needs. For example, some digital assets may be hard to value, requiring specialized expertise from qualified appraisers. Other clients may have their personal or business IT systems hacked, requiring referrals to competent cybersecurity teams and outfits.

5. Make It Legally Binding and Review Regularly 

These are many types of clients with varying digital usage that impact both technical and legal aspects of an estate plan. A well-structured digital estate plan should be actionable, secure, and seamlessly integrated with an overall estate plan. 

A basic estate plan typically includes:

• A will
• In some states, a revocable trust
• Financial and healthcare powers of attorney

At a minimum, practitioners should discuss with their clients the laws governing fiduciary access to digital assets in their jurisdiction, and whether the client intends to provide for the access or deletion of their digital assets and accounts. 

Best Practices for Drafting Digital Asset Provisions

• The will should include a clear digital asset clause specifying the client’s intent regarding:
  • Fiduciary access to digital assets, electronic communications, and online accounts.
  • A definition of digital assets.
• Revocable trusts and financial powers of attorney should echo these directives.
• Wills and/or revocable trusts should designate beneficiaries for each digital asset.
• Never list usernames or passwords directly in a will or trust. Instead, store this information in a secure location instead.

For clients with complex digital assets, additional documents may be necessary, such as:

• Instruction manuals detailing access and management procedures.
• Technology management plans to optimize access and use.

As discussed above, if Online Tools are used as part of the planning process, the designated recipient named in the Online Tool or the directive provided will trump fiduciary access provisions in a will or revocable trust. 

Reviewing the overall plan on a regular basis helps ensure the plan remains current and provides an opportunity to realign the plan with life changes, new digital assets, and technology platforms designed to help clients and practitioners manage digital assets. 

Estate Planners: the Time to Act is Now

Digital assets must no longer be treated as an “emerging” asset class. It’s 2025 — they’ve effectively emerged. For practitioners putting off digital asset planning, make no mistake: digital asset proliferation isn’t going anywhere. The need for this type of planning will only further spike and grow more complicated. Our clients have a digital life, and we must acknowledge that managing digital footprints, devices, accounts, and assets is non-negotiable for a comprehensive estate plan. 

As trusted advisors, we must keep apprised of the legal and technical developments surrounding digital assets with the same diligence we apply to staying atop legislative and tax changes that may impact planning. There is too much at stake to ignore or take lightly this growing challenge. Doing so puts our clients at risk and exposes our practices to potential liability. Our clients expect us to secure their digital legacies with a modern approach to the planning process. They expect us to help them bring order to their digital chaos.

Now, it’s time we deliver.