Everyone Needs To Consider "Digital Assets" When Drafting A Will

Over the past decade, it's become a requirement for attorneys to add some language in wills to address digital assets. Here's a sample I recently used in a will:

"Reference is made to my digital assets, an inventory of which, with a list of relevant user names and passwords, I intend to maintain. Such inventory shall be kept in a secure location and shall be made available to my Executor upon my death. Upon my death, my Executor shall have full access to my digital assets including all rights, powers and privileges that I have."

Here in New York State, we now have a law that specifically addresses access to digital assets by fiduciaries:
Uniform Law Commission’s Revised Uniform Fiduciary Access to Digital Assets Act

Section 13-A-2.2 of this law necessitates adding digital assets language to a will:

(a) A user may use an online tool to direct the custodian to disclose to a designated recipient or not to disclose some or all of the user's digital assets, including the content of electronic communications.  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.

(b) If a user has not used an online tool to give direction under paragraph (a) or if the custodian has not provided an online tool, the user may allow or prohibit in a will, trust, power of attorney, or other record, disclosure to a fiduciary of some or all of the user's digital assets, including the content of electronic communications sent or received by the user.

(c) A user's direction under paragraph (a) or (b) overrides a contrary provision in a terms-of-service agreement that does not require the user to act affirmatively and distinctly from the user's assent to the terms of service.

Here's an excellent post on this issue from the law firm of Farrell Fritz:
https://www.nyestatelitigationblog.com/2019/03/articles/fiduciaries/death-and-digital-content-protecting-digital-assets-after-the-death-of-a-user/

Please feel free to contact me if you have any questions about covering digital assets in a will or other estate planning issues.

Jim

James Maisano, Esq.

93 Wilson Dr.

New Rochelle, NY 10801

914-636-1621

JMaisanoEsq@gmail.com