Digital Estate Planning

Digital estate planning is the part of an estate plan that deals with online accounts: email, photograph libraries, cloud storage, social media, subscription services, domain names, loyalty programs and the login credentials for financial accounts. The problem it solves is not who inherits the value in those accounts, which is decided by ordinary property law and by beneficiary designations. It is whether anybody can get in.

The governing law in the United States is the Revised Uniform Fiduciary Access to Digital Assets Act, usually shortened to RUFADAA. It is a uniform act prepared by the Uniform Law Commission, which means it is a model rather than a statute in force anywhere by itself: it governs only where a state legislature has enacted it, and states have adopted different versions with different effective dates. Everything quoted here comes from California's enactment, Probate Code sections 870 to 884, whose section 870 provides that "this part shall be known, and may be cited, as the Revised Uniform Fiduciary Access to Digital Assets Act." Treat it as an illustration of how the model works, not as a description of the law where you live.

The most useful definition in the act separates the record from the money. California's section 871(h) provides that a "digital asset" means "an electronic record in which an individual has a right or interest", and that the term "does not include an underlying asset or liability unless the asset or liability is itself an electronic record." So a brokerage account is not a digital asset; the login to it is. That is why digital estate planning is not the same subject as cryptocurrency, where the asset itself is the record, and why an executor who can claim a brokerage account with a death certificate may still be unable to read the email that told them the account existed. Note that the same two words are defined differently elsewhere in the law: in federal tax law "digital asset" is a term for cryptocurrency and similar ledger-recorded property, which is a narrower and unrelated use. The definition that governs account access is the one in the state's enactment of this act.

The vocabulary, because the act's terms are not intuitive. In California's enactment the custodian is the platform, defined as "a person who carries, maintains, processes, receives, or stores a digital asset of a user"; the user is the person with the account; and the fiduciary is "an original, additional, or successor personal representative, conservator, agent, or trustee". Two further terms do most of the work. An online tool is "an electronic service provided by a custodian that allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person" — in practice, the legacy-contact or inactive-account setting inside the platform itself. A designated recipient is "a person chosen by a user using an online tool to administer digital assets of the user", which is a role that exists only because online tools do.

The order of authority, and the condition on it that is easy to miss. Section 873(a) provides that a user may use an online tool to direct the custodian to disclose or not disclose some or all of their digital assets, including the content of electronic communications, and that "if the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney, or other record." The conditional clause matters: the online tool wins because it is revocable at any time, so a tool that locks a choice in does not get that priority. Where no online tool was used, or none is offered, section 873(b) lets the user allow or prohibit disclosure in a will, trust, power of attorney or other record. And section 873(c) provides that either direction "overrides a contrary provision in a terms-of-service agreement", which is what stops the platform's own contract settling the question.

The two opposite defaults are the heart of the act. For the contents of electronic communications, section 876 requires disclosure only "if a deceased user consented to or a court directs disclosure", and the personal representative must give the custodian a written request, a certified copy of the death certificate, a certified copy of the letters of appointment, "a small-estate affidavit under Section 13101, or court order", and — "unless the user provided direction using an online tool" — a copy of the will, trust, power of attorney or other record evidencing the user's consent. For the catalogue of electronic communications and for everything other than content, section 877 runs the other way: "unless the user prohibited disclosure of digital assets or the court directs otherwise, a custodian shall disclose", on the same documentary showing minus the consent record.

So silence produces a split result. It loses the contents of the messages and keeps the catalogue, which section 871(c) defines as "information that identifies each person with which a user has had an electronic communication, the time and date of the communication, and the electronic address of the person." The practical instruction follows directly: use the platform's online tool wherever one exists, because it outranks the will, and where no tool exists, the will, trust or power of attorney has to say expressly that the contents of electronic communications may be disclosed. A document that is silent has chosen the default.

The platform keeps the upper hand on how it complies. Section 875 provides that a custodian may, "in its sole discretion", grant full access, grant partial access sufficient for the fiduciary's task, or simply "provide the fiduciary or designated recipient with a copy in a record" of the digital assets. It "may assess a reasonable administrative charge", "need not disclose … a digital asset deleted by a user", and where a partial request would require segregation that "would impose an undue burden" it may decline, with either side able to petition the court, including for disclosure to the court for review in camera.

What a fiduciary does not get. Section 874(b) provides that the act "does not give a fiduciary or designated recipient any new or expanded rights other than those held by the user"; 874(a) preserves the custodian's and the user's rights under the terms-of-service agreement; and 874(c) provides that access "may be modified or eliminated by a user, by federal law, or by a terms-of-service agreement when the user has not provided any direction" recognized by section 873. Federal law is doing real work in that sentence: section 876's court-order route contemplates a finding that disclosure "would not violate" the federal stored-communications provisions at 18 U.S.C. 2701 and following, and section 222 of title 47. Which is why writing the passwords on a card is not a plan. It may breach the platform's terms, it does not confer authority on anyone, and it goes stale at the first password change.

A scope limit worth one clause, and a recency point that is California's alone. The act does not apply to "a digital asset of an employer used by an employee in the ordinary course of the employer's business" (section 872(b)). And California extended its version to conservators appointed, and to fiduciaries acting under powers of attorney executed, "before, on, or after January 1, 2025" — an amendment specific to California, which should not be generalized to any other state's version.

1. Inventory the accounts, not the assets. The list that matters is logins: email first, because it is the recovery route for everything else, then cloud storage, photographs, financial logins, social media and subscriptions.

2. Set the online tool wherever one is offered. Under California's section 873(a) a direction given through a tool that can be changed at any time overrides a contrary direction in the will, trust or power of attorney.

3. Say it expressly in the documents. Where no tool exists, only an express grant in the will, trust or power of attorney supplies the consent that section 876 requires for the contents of communications.

4. Expect two different answers after death. In California's version the catalogue must be disclosed unless prohibited; the contents require consent or a court order.

5. Expect the platform to choose the form. Section 875 lets the custodian decide between full access, partial access and a copy, and to charge a reasonable administrative fee.

A hypothetical example of what the catalogue is actually worth. Owen dies and his personal representative works from the paper in his filing cabinet, finding three accounts totalling $48,000. Claiming those is straightforward: the accounts are not digital assets, the logins are, and the institutions hand them over against a death certificate and letters of appointment.

Owen set no online tool anywhere and his will says nothing about electronic communications. Under California's section 877 the email provider must still disclose the catalogue — who he corresponded with, when, and at what addresses — because he never prohibited it. That list shows regular correspondence with two further institutions holding $22,000 between them, so the inventory moves from $48,000 to $48,000 + $22,000 = $70,000.

What the representative cannot get is the content of any of those messages, because section 876 requires consent Owen never gave or a court order nobody has yet sought. The catalogue found the accounts; reading the correspondence about them would have needed one sentence in the will. Figures are illustrative and the provisions are California's.

What planning for this achieves

• It is fast and free. Setting a legacy contact or an inactive-account plan takes minutes and, under California's version of the act, outranks the will.
• It removes the commonest practical failure in an estate, which is a family that knows an account exists and cannot get into it.
• It protects the email account, which is the password-reset route for everything else and therefore the highest-value item on the list.
• Where no online tool is offered, one express clause in the will, trust or power of attorney changes the default result for the contents of communications.

What it cannot do, and what it costs

• The governing act is state law, so what applies where you live depends on whether and in what form your legislature enacted it.
• Even a fiduciary with full authority gets no rights the user did not have, and the platform keeps discretion over whether it grants full access, partial access or only a copy.
• A custodian may charge a reasonable administrative fee, need not restore anything the user deleted, and may decline a partial request that would impose an undue burden.
• Writing passwords down is not a substitute. It confers no authority, may breach the platform's terms, and stops working at the next password change.
• The act does not reach an employer's digital assets used by an employee in the ordinary course of the employer's business, so work accounts are outside it.