"Digital assets" include information stored on a computer or external drive, content uploaded onto websites, and rights in digital property. If your estate plan doesn't account for these digital assets properly, your beneficiaries may not be able to gain access to them.

1. By Patti S. Spencer ESQ
DIGITAL ASSETS
Estate Planning
FOR

2. Estate Planning For Digital Assets
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About Patti
Patti S. Spencer. Esq. has been practicing law for
35 years and continues to focus her practice on
estate planning, probate, trusts, taxation, and
closely-held business issues. Ms. Spencer serves
as an Executor or trustee when requested to do
so by clients and often works as a consultant
to other attorneys and financial professionals in
estate planning, trust and taxation matters as
well as giving expert witness testimony. Before
founding Spencer Law Firm in 1996, Ms. Spencer
was the Head of the Personal Trust Department at
a regional bank in Pennsylvania.
She graduated Summa Cum Laude from Dickinson
College and received her J.D. and LL.M. in
Taxation from Boston University School of Law.
She is a member of both the Pennsylvania and
Massachusetts Bars. She has taught courses in
Estate and Tax Law for Boston University School
of Law and for Franklin and Marshall College.
Her column, Taxing Matters, appeared weekly in
the “Business Monday” section of the Lancaster
Intelligence Journal for 14 years. She is a frequent
lecturer and is the author of numerous articles on
estate planning topics. Ms. Spencer was named
one of Pennsylvania’s Top 50 Business Women
for 2000 and has been elected as a fellow to the
American College of Trust and Estate Counsel.
Your Estate Matters, a book which is a
compilation of Ms. Spencer’s columns was
published in January 2015.
Ms. Spencer is also the author of a reference book
for lawyers: Pennsylvania Estate Planning, Wills
and Trusts Library Forms and Practice Manual,
published in 2007 and updated annually.
Patti S. Spencer ESQ
Contact Patti
T: 717-394-1131
E: info@spencerlawfirm.com
320 Race Ave
Lancaster, PA 17603
Spencer Law Firm LLC
www.spencerlawfirm.com

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Table of Contents
4 - What are Digital Assets?
10 - Federal Law
11 - Proposed Pennsylvania State Law
12 - What to do now?

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“Digital assets” include information stored on a computer or external drive,
content uploaded onto websites, and rights in digital property. Common examples
of digital assets are e-mail, documents, photographs, videos, books, blogs, social
media accounts, applications, cryptocurrencies, and web domain names, just to
name a few.
It has become the norm to store financial records on smartphones, computers, or
in the cloud. Many financial transactions are conducted electronically. Most people
own lots of digital assets, which can include anything from domain names and
electronically stored photos and music to email and social media accounts.
You may think all the things you manage online belong to you. Don’t be so sure.
Some assets are owned by you, but some are only leased to you for your life. It
depends on the terms and conditions stated in that “Terms of Service” agreement
on which we all click “I agree” but never read until later, if ever.
Examples of digital assets you can transfer include:
I. Paypal account credit
2. Amazon account credit
3. Ebay account credit
4. Bitcoin and other cryptocurrencies
5. Digital music or photos you own (music is often leased, not owned)
6. Frequent flyer miles on some carriers
7. Data stored on your local device such as photos, documents and music
What are Digital Assets?

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Examples of digital assets you cannot transfer include:
1. Your email and social media accounts
2. Non-transferable domains that you’ve licensed
3. Subscription accounts like Netflix and Amazon Prime
4. Apps on your phone or tablet (and the data they contain)
How can your executor and beneficiaries access your digital assets?
If your estate plan doesn’t account for digital assets properly, your beneficiaries
may not be able to gain access to them. Family photos could be lost forever, social
media accounts could stay online long after you’ve passed, and your heirs may not
be able to retrieve cash balances and cryptocurrencies.
Gaining access to a decedent’s digital assets can be a daunting task. First, the
executor has to come up with the decedent’s passwords. Even if the personal
representative finds the passwords, he or she should think carefully before using
them. Doing so may violate federal and state privacy and computer hacking laws.
Many digital assets are subject to terms of service agreements (“TOSA”) entered
into by the decedent. Most people just click through these agreements and have no
idea what they provide on the death of an account holder. For example, Facebook’s
terms of service prohibit the use of another user’s login credentials, even with
permission from that user.
Another issue is ownership. Sometimes the decedent does not actually own a digital
asset but has a license to use it for their lifetime, and sometimes digital assets
are in the decedent’s possession but are actually owned by their former employer.
For this reason, it is likely that books, movies, music, etc. may not be able to be
transferred – unlike physical versions.
The first step is to set up after death access through Terms of Service Agreements
where applicable.

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Some Service Providers Provide a Means of Access After Death
Facebook
Facebook first introduced Memorial accounts. Anyone could report that a user
had died. Facebook would permanently lock the account and keep it from posting
updates or appearing in birthday notifications.
Then Facebook introduced the option to register a Legacy Contact. This person
would be able to sign in and post a final message to the timeline. However, the
Legacy contact cannot read the deceased user’s messages. They can change the
profile picture as well as archive photos and posts and moderate any unsuitable
content.
You can also choose to have your account deleted when you die. There is an
option under settings-security.
If the user has not put anything in place, a family member can request for the
profile to be removed by sending a death certificate to Facebook. In some cases
Facebook may provide content from the deceased user’s account but that is not
guaranteed. Proof of being an authorized person such as family member or a court
order will need to be presented. Again, there is still no guarantee that content will
be released.
Instagram
Like Facebook, Instagram will memorialize a user’s account, however no one can
log in and nothing can be changed. Memorialized accounts will not appear in public
spaces like searches.
A friend or family member will need to contact Instagram via email to notify
them of the death as well provide proof of death which can be an obituary, news
article as well as a Death certificate or proof of authority from executor or person
administering the estate.
Unlike Facebook, you cannot plan ahead with your Instagram account.

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LinkedIn
LinkedIn is a little more flexible yet not as forward thinking. You cannot plan
ahead. The account will simply be deleted once the personal representative or
executor of estate provide them with:
a) Member’s Name and URL
b) Your relationship to the deceased
c) Member’s email address
d) Link to Obituary
e) Date of Death
f) Company they most recently worked for
The account will be deleted. Data cannot be downloaded unless you have access to
the username and password.
Pinterest
A family member or estate administrator can email Pinterest with the following
information to deactivate a deceased’s Pinterest account:
a) Death Certificate or Obituary or News Article
b) Proof of relationship to deceased, e.g. Birth/marriage certificate, Family
household records, Notarized proof of relation, name included in obituary.
Pinterest will not provide user logins or passwords to anyone. If you send proof of
death, Pinterest will deactivate the account.
NOTE: If your Pinterest account is linked to Facebook, Google or Twitter, be sure to
delete the Pinterest account first.

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Twitter
Twitter will coordinate with a family member or person authorized to act on behalf
of the estate to deactivate the account. If an authorized person wants to remove
the account completely, they can provide a death certificate as well as photo ID to
do so. Twitter’s policy states it will not give access to the deceased user’s account
to anyone regardless of the relationship to the user.
Snapchat
Snapchat does not provide any information on how to plan ahead or how someone
will delete or access a deceased user’s account. Therefore, it is advisable if you
want your account to be deleted when you die, leave username and password with
someone who can delete the account.
Google/Gmail
Users can choose to have an account deleted or information shared after a certain
period of inactivity. This can be done through the setting “Inactive Account
Manager”.
Gmail will also allow family members and friends to apply to obtain the contents of
a deceased user’s account in certain circumstances.
Yahoo
Yahoo will allow friends/family to close the account once they can provide
the necessary documentation. (Yahoo ID, a copy of document appointing the
requesting party as personal representative or executor of the estate of deceased,
copy of death certificate)
They will not provide username or passwords or allow access to any account
information or data. It is part of their Terms of Service that all content is non-
transferable even when the account owner is deceased.

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Apple
iCloud/iTunes accounts and data are non-transferable.
Once the user dies, the account and rights to the account are terminated. It’s part
of their terms and conditions, which you clicked to say you read and understand,
although let’s be honest, you probably did not read them and agreed anyway!
Once they receive a death certificate, the account will be deleted, and all the
content will be deleted. You can give someone access to your account by
providing usernames and passwords, but again based on what you “agreed and
understood”, this would be a breach of the Terms of Use.
The use of Family Sharing may be a way to work around accessing music and
other purchases and would be a matter for Apple Legal.

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Federal Law
There are three federal laws that are important regarding an executor’s access to
digital assets:
1. Computer Fraud and Abuse Act
2. Electronic Computer Privacy Act
3. Stored Communications Act
The Computer Fraud and Abuse Act (CFAA), is a cyber-security law that prohibits
accessing a computer without authorization, or in excess of authorization. Critics
of the Act say that many common and insignificant online acts, such as password
sharing and copyright infringement, can transform a CFAA misdemeanor into a
felony. The punishments are severe, similar to sentences for selling or importing
drugs, and may be disproportionate.
The Electronic Computer Privacy Act (ECPA) is an update to the Federal Wiretap
Act of 1968. It was amended to extend restrictions on government wire taps of
telephone calls to include transmissions of electronic data by computer and added
new provisions prohibiting access to stored electronic communications.
The Stored Communications Act is a law that addresses voluntary and compelled
disclosure of “stored wire and electronic communications and transactional
records” held by third-party internet service providers
If an executor accesses someone’s online subscription account, such as Facebook
or Twitter, without the proper authorizations, such fiduciary could be in violation
of these statutes.

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Proposed Pennsylvania State Law
The National Conference of Commissioners on Uniform State Laws (“NCCUSL”) has
drafted and approved the Uniform Fiduciary Access to Digital Assets Act, Revised
2015 (“RUFADAA”). The purpose of the uniform act is to give fiduciaries authority
to access, control, or copy digital assets and accounts. Its goal is to remove
barriers to a fiduciary’s access to electronic records and to leave unaffected other
law, such as fiduciary, probate, and trust law. RUFADAA defines a digital asset as
simply “an electronic record”. RUFADAA has been enacted in 42 states. It was
introduced for the current legislative term in Pennsylvania. If enacted, the law will
treat a fiduciary as an authorized user.

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What To Do Now
1. Make a list. You need to create a list of usernames and passwords for all of
your digital assets. Include all online accounts for banking, investments, e-mail,
social media, Paypal, etc. It must be kept in a safe place and your family members
or named executors need to know where to find it. You can consider using
password management Apps such as 1Password or LastPass.
2. Check terms of service agreements, like those mentioned above for
Facebook, etc. and make any arrangements for after death access they permit.
3. If you store digital assets in the cloud, consider making a backup on a local
computer or storage device on a regular basis.
4. Update wills, powers of attorney, and trusts to include language giving
consent to providers to give your executor and your agent the ability to access
digital assets and establish your executor and agent as authorized users.
Since digital assets are still relatively new, the laws that deal with them are
changing rapidly. You should address your digital assets when you review and
update your estate plan.

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The use of the Internet or the complimentary phone consultation for communication with the firm or any individual member of the firm does not
establish an attorney-client relationship.
SpencerLawFirm.com
Copyright “Patti Spencer” 2018
All rights reserved. No part of this publication may be
reproduced or redistributed in any form without
the prior written permission of the publishers
Contact Patti
T: 717-394-1131
E: info@spencerlawfirm.com
320 Race Ave
Lancaster, PA 17603
Spencer Law Firm LLC
www.spencerlawfirm.com