Why digital estate planning is about more than the Facebook photos

Many Americans have digital assets, but fail to consider them in estate planning

Estate planning is constantly evolving with the times, and one sign of that continued evolution is the rise of so-called digital assets. According to Investment News[1], digital assets, including accounts, photos, music, videos, PDF documents, and other files found online, are becoming an increasingly lucrative part of many Americans' lives. Unfortunately, when it comes to estate plans, many people overlook planning for how their digital assets will be handled after their death. Because of strict privacy laws, however, failing to plan for digital assets can leave surviving loved ones struggling with how to deal with this new area of estate planning law.

Why digital assets matter

Many people falsely assume that what they have online has little monetary value. However, as Wealth Management[2] recently pointed out, the average person who spends time online now has about 26 unique online accounts. Some of those accounts, such as an eBay or PayPal account, may have a clear monetary value.

However, even accounts that appear to be for personal pleasure only may end up becoming a business asset in the future. Investment News profiled one retiree who began posting photos of his garden on Pinterest. As he gained a following for his personal hobby, however, advertisers took notice and he now makes up to $10,000 per month from ad revenue through the account.

Account access

The problem with not taking digital assets into account when coming up with an estate plan is because federal privacy laws make it very difficult for loved ones to access such accounts after the death of the account holder. The Stored Communications Act[3], for example, states that third parties cannot gain access to a person's personal records that are stored by an Internet service provider unless the account holder first authorizes access. Therefore, if relatives have no preauthorized access to a deceased loved one's online accounts, it can be exceedingly difficult to gain access to those accounts.

People should plan by compiling a list of their online accounts and passwords and keeping the list in a secure place, such as a security deposit box. A trusted individual, such as a spouse, should be the only person who knows how to access the list. Keep in mind, however, that such a list should be kept separate from a will since a will is a public document.

Estate planning issues

As the world of estate planning changes, anybody who is concerned about how their assets will be protected after they die should contact an experienced estate planning law firm. A qualified attorney will be able to help clients create an estate plan that protects their interests and adequately prepares for the future.


[1] Investment News, "The latest wrinkle in estate planning: Digital Assets," Darla Mercado, July 20, 2014.

[2] WealthManagement.com, "Review of Reviews: 'Viable Solutions to the Digital Estate Planning Dilemma,' 99 Iowa L. Rev. Bull. 61 (2014)," Louis S. Harrison, July 24, 2014.

[3] 18 U.S.C. §§ 2701-2712.