Watkins — Volume 62, Issue 1

Digital properties and assets have become integral components of modern life, creating novel inheritance and succession planning challenges. Twenty years ago, tangible items like letters, photographs, and home movies could easily pass between generations, preserving family history. Today, lives are increasingly chronicled digitally through computer hard drives, photo storage websites, email accounts, and social media platforms. The average person maintains twenty to twenty-five online accounts, representing valuable digital property forming part of estates yet lacking clear legal inheritance frameworks. Digital assets include not just data but artifacts chronicling one's life and holding substantial emotional and financial value. Watkins examines obstacles heirs face accessing digital properties after death, including passwords, encryption, federal and state criminal laws criminalizing unauthorized computer access, and complex terms of service agreements. When setting up online accounts, users typically agree to terms of service creating contracts between the user and service provider. Clickwrap agreements frequently include clauses stating that sharing passwords violates terms, potentially creating violations if account access passes to heirs. Even after death, unauthorized access could trigger cybercrime charges under federal law. Despite digital property importance, only seven states have enacted fiduciary access legislation, though eighteen others have considered or are considering such legislation. The Fiduciary Access to Digital Assets Committee of the Uniform Law Commission is drafting uniform legislation addressing fiduciary management and distribution of digital assets.

Topics: Property · Evidence & Procedure · Family Law

Keywords: digital assets · digital property · inheritance · succession · terms of service · fiduciary access · estate planning