Cyber Estate Planning and Administration

Abstract

Recently, a new subdivision of property has emerged that many people label as “digital assets” such as accounts used for e-mail, professional and personal data backups, banking, investment, and shopping, domain names and web-hosting accounts, social networking accounts, and avatars for online games. While estate planners have perfected techniques to transfer traditional types of property, many estate planners do not address digital assets when preparing their clients’ estates.

This article aims to educate estate planning professionals on the importance of planning for the disposition and administration of digital assets so that fiduciaries can locate, access, protect, and properly dispose of them. The operation of the Revised Uniform Fiduciary Access to Digital Assets Act now enacted in at least forty-one states is explained in detail. Several planning techniques that may be employed are discussed and the appendices include sample forms clients may use to organize their digital assets and sample language that can be used in estate planning documents, court orders, and in request letters to digital asset custodians.

The article also contains a discussion of cryptocurrency, non-fungible tokens, and a special section designed for probate judges.

Keywords: digital assets, digital estate, estate planning, wills, trusts, passwords, fiduciary, cryptocurrency, NFT, non-fungible tokens

JEL Classification: K11