The digital revolution has created an entirely new category of assets that must be addressed in estate plans: cryptocurrency, NFTs, social media accounts, digital businesses, email accounts, cloud-stored documents and photographs, and online financial accounts. These digital assets present unique challenges for estate planners because they are often secured by encryption, protected by service provider terms of use, and may be unknown to the fiduciary tasked with administering the estate.
The Legal Framework for Digital Asset Access
The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) provides the legal framework for fiduciary access to digital assets. RUFADAA has been adopted in most states and establishes a three-tier priority system for determining whether a fiduciary can access a deceased person's digital accounts: first, the user's direction in an online tool provided by the service provider (such as Google's Inactive Account Manager); second, the user's direction in a will, trust, power of attorney, or other estate planning document; and third, the service provider's terms of service agreement.[1]
Mississippi has not yet adopted RUFADAA, which means that fiduciaries in Mississippi may face additional challenges in accessing digital assets of a deceased person. Without RUFADAA, the fiduciary's access rights are governed primarily by the service provider's terms of service, which often prohibit access by anyone other than the account holder.
Cryptocurrency and Digital Tokens
Cryptocurrency presents perhaps the most challenging digital asset planning issue. Unlike traditional financial accounts, cryptocurrency is not held by a custodian who can be compelled to provide access to a fiduciary. Instead, cryptocurrency is controlled by private keys—long strings of characters that provide access to the assets on the blockchain. If the private keys are lost, the cryptocurrency is permanently inaccessible. There is no "forgot password" option, no customer service number to call, and no court order that can recover lost keys.[2]
Estate planners must ensure that cryptocurrency owners have a secure method for preserving and transferring private keys to their fiduciaries. Options include hardware wallets with recovery seed phrases stored in a secure location (such as a safe deposit box), multi-signature arrangements that require multiple keys to access the assets, and custody solutions provided by specialized cryptocurrency custodians.
Social Media and Digital Content
Social media accounts, blogs, and digital content libraries raise questions about both access and ownership. Many service providers' terms of use provide that the account is personal and non-transferable, which can prevent a fiduciary from accessing or managing the account after the user's death. Facebook offers a "legacy contact" feature, Google provides the Inactive Account Manager, and Apple has a Digital Legacy program—each with different requirements and limitations.[3]
Practical Planning Steps
Every estate plan should include a comprehensive digital asset inventory that identifies all digital accounts and assets, the location of login credentials and private keys, the designated fiduciary for digital assets, and specific instructions for each account (preserve, transfer, delete, or memorialize). The inventory should be stored securely—not in the will itself, which becomes a public document upon probate—and updated regularly as accounts are created, closed, or changed.[4]
Powers of attorney should specifically authorize the agent to access and manage digital assets, and trusts should include provisions addressing digital asset management. Working with an estate planning attorney who understands the unique challenges of digital assets is essential to ensuring that these increasingly valuable assets are properly addressed in the estate plan.[5]