Digital Assets & Probate
What are “Digital Assets”?
The digital world may be abstract, but when it comes to probate it is not so different from the world of bank accounts and antiques. A digital asset is any electronic record over which you have ownership or control. This may include:
Memories & Media
- Cloud photo and video libraries
- Streaming & download libraries (books, music, films)
- Documents stored in services like iCloud, Google Drive or Dropbox
Everyday Accounts
- Online banking and investment apps
- PayPal, Venmo, Zelle and similar services
- Utility and credit-card portals used to pay bills
Online Presence & Value
- Email and social media accounts
- Online businesses, websites and domain names
- Cryptocurrency, NFTs and other virtual property
Some of these assets are deeply personal; others may hold significant economic value. All of them can create real challenges if no one knows they exist or how to access them.
The Surrogate’s Court has worked with families whose loved ones did nearly all of their banking and bill-paying online, often through a single smartphone. If a decedent’s financial information is only accessible through a locked device and no one knows the passcode, it may be impossible to locate or manage critical accounts.
Phone manufacturers and service providers may refuse to unlock devices or share encrypted data without proper legal authority, even when presented with court orders. For that reason, it is essential to include the digital world in your planning – both to protect your privacy and to ensure that someone you trust can carry out your wishes.
On September 13, 2017, New Jersey enacted the Uniform Fiduciary Access to Digital Assets Act, now codified at N.J.S.A. 3B:14-61.1 through 3B:14-61.18. This law authorizes an executor, administrator, agent under a power of attorney, guardian, or trustee, under certain circumstances, to manage the electronic records and digital assets of a decedent, principal, incapacitated person or trust creator.
Key concepts in the Act include:
- Digital Asset – A person’s digital property and electronic communications (for example, files, photos, emails, or virtual currency).
- Custodian – The company that stores your digital assets, such as an email provider, social media platform or cloud service.
- Online Tool – A feature offered by a provider (such as Google’s Inactive Account Manager or a social media “legacy contact” setting) that lets you direct what happens to your account after death.
- Catalogue vs. Content – In many cases, a fiduciary may access a catalogue of communications (who you contacted and when) but may need specific consent to see the actual content of messages.
The Act also makes clear that a fiduciary’s authority over digital assets is subject to:
- The terms of service for each account,
- Other applicable law (including copyright law), and
- The same fiduciary duties of care, loyalty and confidentiality that apply to tangible property.
A fiduciary acting within the scope of his or her duties is treated as an “authorized user” for purposes of computer-fraud and unauthorized-access laws, but may not impersonate the user or exceed the authority granted by law and by the court.
Identify your digital assets
Online accounts: e-mail, social media.
Devices: computers, phones, tablets.
Photos and videos stored online.
Music and movies.
Cryptocurrency.
Keep am up to date inventory
Set aside time once or twice a year to review and update your digital asset list. Make a note of the contents of each asset and how to access them.
Secure your passwords
Create a record of all digital logins, ensuring it is securely stored and easy to locate. If you use a password manager, leave instructions on how to access it.
Decide who will manage your assets
Who do you trust to handle your data?
Who has the technical skills to manage or transfer it?
Organizing your digital life
There are no “cookie-cutter” answers in estate planning. What is right for you may not be right for a friend, coworker or neighbor. It is vital to sit down with an attorney or other qualified professional and develop a plan that protects both your traditional property and your digital assets – especially if you have children or other loved ones who depend upon you.
One of the most important steps you can take is to make a clear, organized record of your digital world and keep it in a safe place.
1. Create a digital asset inventory
- List all online accounts you use (banking, investments, utilities, email, social media, cloud storage, subscriptions, etc.).
- Note how each account is used and whether it holds money, important records or irreplaceable memories.
- Include any cryptocurrency wallets, NFTs or other virtual property.
2. Organize access & credentials
- Use a reputable password manager to store usernames and passwords securely.
- Decide how a trusted person will gain access if something happens to you (for example, sealed instructions, a shared master password, or legacy access tools offered by providers).
- Avoid leaving passwords scattered in email drafts or plain-text documents.
3. Protect photos, videos & creative work
- Back up family photos, videos and important documents in at least two locations (such as a cloud drive and an external hard drive).
- Identify who should inherit your photos, home movies, music and other personal media.
- Let your fiduciary know where these archives are stored and how to reach them.
4. Coordinate with your legal documents
- Discuss including digital asset clauses in your Will, Power of Attorney and, if applicable, your Trust.
- Consider naming a fiduciary who is comfortable with technology or providing that person with support.
- Review your plan regularly and update it as you add or close accounts.
Online tools, privacy & your wishes
Many providers now offer built-in tools that allow you to decide what happens to an account if it becomes inactive or upon your death. Examples include “legacy contact” options on social media, or settings that allow downloads of account data by a trusted person. Under New Jersey’s law, your choices in these online tools may control even if they differ from instructions in your Will or other documents, so it is important that your settings and your estate plan work together.
This section of our website does not propose a solution to broader debates over civil liberties or government access to encrypted data. Rather, our goal is to focus on your needs – how you can preserve your privacy, pass along treasured memories and ensure that the fiduciary you choose has a clear path to follow.
Talk to someone you trust
Remember: you must communicate with someone you trust. Make time to sit down with a live professional who can give you individualized feedback. Bring your list of digital accounts, along with a sense of which items are truly important for your family. Work together to design a plan that respects your privacy, honors your wishes and follows the law.
Just as important, once you create your digital inventory, maintain and update it. If you change passwords, open new accounts, add new photo libraries or acquire new digital assets, make sure your list and your planning documents keep pace.