There is no doubt that technology plays a central role in our lives today. How many times each day do you check your texts, your emails, and your social media accounts? Probably too many times to count.
Jump ahead to these sections:
- What is a Digital Executor?
- What Are The Common Duties of a Digital Executor?
- What States Let You Designate a Digital Executor?
- Tips for Choosing the Best Digital Executor
- How to Designate a Digital Executor
- What Happens If You Don’t Name a Digital Executor?
Unfortunately, when we die, we cannot take our technology with us. In some cases, our technology may have a monetary value. In other cases, our technology holds memories for us on top of having a physical sentimental value. In still other cases, it is simply important for others to be able to use our technology.
After a death, someone needs to assume responsibility that our technology transfers to the correct person and is otherwise preserved. The role that a person takes on is known as a digital executor.
This article discusses digital executors - their definition, their duties, and how to choose one.
What is a Digital Executor?
The definition of a digital executor is best understood from its two component words. An executor legally helps to carry out the wishes of the deceased. Specifically, an executor is appointed under a deceased person’s valid will to carry out the terms of the will and administer a deceased person’s estate.
Executors can manage any and all assets of a decedent. However, the first word digital in this context can refer to digital assets. So in this case, digital executors specifically manage anything that exists or is stored in a digital format.
Some examples of digital assets can include:
- Email accounts
- Social media accounts
- Website domains
- Cloud storage accounts
- Online accounts
- Online documents
- Online photos
- Online music files
What Are The Common Duties of a Digital Executor?
As mentioned above, the basic duty of a digital executor is to distribute your digital assets to the beneficiaries you have designated.
For example, suppose Jason’s will designates his frequent flier account (including any accrued miles or points for benefits) to be transferred to his brother Tom. Additionally, he lists his Bitcoin account to be transferred to his sister, Meredith, and his online photos and music files to transfer to his best friend, David. Jason’s digital executor would have the responsibility on Jason’s death to transfer Jason’s frequent flier account to Tom, Jason’s Bitcoin account to Meredith, and Jason’s online photos and music files to David.
Another common duty of a digital executor is to preserve a digital asset until it can be transferred to a new owner. For example, a digital executor may be responsible to maintain an income-producing website or blog until it can be taken over by a new owner.
The duties of a digital executor should be described in the decedent’s will. With a will, it is important to detail these specific duties for executors to follow your wishes. These duties also could include:
- Maintaining services that are paid for online
- Archiving emails, photos, or other online assets
- Deleting online files and erasing hard drives
- Closing online accounts
- Storing passwords and other online access information.
What States Let You Designate a Digital Executor?
No state expressly prohibits the ability to designate a digital executor, as many states have adopted the Revised Uniform Fiduciary Access to Digital Assets Act (“Revised UFADAA”).
As approved by the National Conference of Commissioners on Uniform State Laws in 2015, the Revised UFADAA has two purposes.
First, it gives fiduciaries—in this case an executor—the legal authority to manage digital assets and electronic communications. This is similar to the way they manage tangible assets and financial accounts, to the extent possible.
Second, it gives custodians of digital assets and electronic communications legal authority to deal with the fiduciaries of their users, while respecting the user’s reasonable expectation of privacy for personal communications.
Fiduciaries, under the Revised UFADAA, also include digital executors, as well as regular executors and trustees.
If you are looking for help, you may want to consult with an estate planning attorney in your applicable state to see if the Revised UFADAA (or some other digital executor law) has been adopted in your state.
Tips for Choosing the Best Digital Executor
There are five key qualities to look for in choosing the best digital executor.
- Select someone dependable. You want to feel confident that if there is a duty to be performed promptly, your digital executor will perform it promptly.
- Select someone who has available time. A person may have time-consuming work or family issues leaving insufficient time to perform the duties of a digital executor. Such a person would not be a good choice to be your digital executor.
- Select someone trustworthy. You do not want to select a digital executor more concerned with selfish personal interests than your own interests.
- Select someone amiable. It is important to choose someone who gets along with your beneficiaries and users of your digital assets. You want to avoid future disputes between your digital executor and these beneficiaries and users.
- Select someone with good digital knowledge. Your digital executor does not need to be Bill Gates or the world’s greatest hacker. However, your digital executor should have sufficient digital knowledge to be able to effectively carry out your digital asset intentions. If Uncle Bob does not know the difference between a Twitter account and an Instagram account, he is not a good choice to be your digital executor.
In addition to these five qualities, your digital executor also needs to meet any qualifications set by state law. These qualifications can include U.S. citizenship, state residence, age, or other requirements. These four qualities generally also are important in selecting any executor, but the fifth quality is specific to a digital executor.
Consider consulting an estate planning attorney in your applicable state to see the digital executor qualifications in your state.
How to Designate a Digital Executor
You need to designate a digital executor under a valid will, which can also address things such as successor digital executors and digital executor duties.
Execution of a valid will
The key point to designate a digital executor is to include such designation under a valid will.
For example, Amanda wants her daughter Corinne to be her digital executor. If Amanda designates Corinne as her digital executor under a valid will, Corinne should become Amanda’s digital executor. On the other hand, if Amanda fails to write her intention under a valid will, Corinne probably does not become Amanda’s digital executor.
What makes a valid will? While the exact requirements may vary from state to state, a valid will generally is:
- Executed by the decedent
- Witnessed by two independent persons (not otherwise beneficiaries, executors, or otherwise named in the will)
- Notarized by an independent notary public (not otherwise a beneficiary, an executor, or otherwise named in the will).
If you already have a will and did not address the issue of a digital executor, but now want to designate a digital executor, all is not lost. You can execute a valid amendment to your will, often known as a codicil, and designate a digital executor under the codicil. The requirements for a valid codicil generally are similar to the requirements for a valid will.
Successor digital executors and digital executor duties
The designation of a digital executor under a valid will is a necessary step. Yet, it may not comprehensively address all of the estate planning issues concerning digital executors.
First, the person you designate as a digital executor may be unable to serve. For example, your executor may die before serving, develop a disability, or simply have no desire to serve as your digital executor. To address this issue, you should list one or more successor digital executors under your will in the event your digital executor cannot serve.
Second, you should describe with as much detail as possible under your will the specific duties that you want your digital executor to perform. “Digital executor” is a relatively new term in estate planning.
Just designating someone as a digital executor without describing the specific responsibilities that you want the person to perform can lead to uncertainty and possible litigation. This potential problem can be mitigated if applicable state law clearly and broadly defines the duties of a digital executor.
What Happens If You Don’t Name a Digital Executor?
There is no absolute requirement that you name a digital executor. If you execute a valid will designating an executor, this person can exercise many of the basic duties of a digital executor. You may be comfortable with this person managing your digital assets after your death. However, there is always the risk that a general grant of authority to an executor does not cover all issues concerning your digital assets.
If you fail to execute a valid will, there will be no executor for your estate. Instead, a probate court appoints a person, often called an administrator, to manage your assets. The administrator is selected by a combination of applicable state law and the probate court judge, and not by you.
What digital executor duties are handled by the administrator is determined by the probate court judge, and not by you. You lose the ability to control your estate if an administrator, instead of a digital executor or executor, is in charge.
The Right Approach to Digital Executors
There are two alternative approaches to the issue of a digital executor. You can either name a separate digital executor or name your executor as your digital executor. Whichever approach you use, make sure to write it down in your will. Additionally, it is recommended that you list successor digital executors as well as the duties of said digital executor.
However, you do not want to ignore the digital executor issue. Technology is too important in our lives to have it be administered after our death contrary to our intentions. As with any significant asset, proper estate planning requires consideration of the post-death treatment of your digital assets. By establishing a digital executor, you give your family the opportunity to hold onto important assets as well as certain memories that only exist online or on your devices.