When someone dies, the photographs are in the cloud, the bills are paid from an online account, the business runs on a domain name, and the money may sit in a cryptocurrency wallet whose key nobody wrote down. Nearly everyone now owns digital assets. Few people have planned for what happens to them, and the terms of service most of us clicked through say a great deal about who can get in and what they can see.
In this TalksOnLaw interview, recorded in 2021, Joel Cohen speaks with Naomi Cahn, the Justice Anthony M. Kennedy Distinguished Professor of Law at the University of Virginia School of Law, a leading trusts and estates scholar who helped draft the uniform law that governs fiduciary access to digital assets, about why digital assets matter, what the law allows an executor or agent to reach, and what every lawyer should be telling clients to do now.
What Counts, and Why It Matters
Cahn defines digital assets broadly: social media and email accounts, online banking and shopping accounts, domain names, cloud photos, airline miles, in-game items that can be worth six figures, and cryptocurrency. The account, the password and the content are each an asset. The stakes are emotional (a deceased uncle's birthday reminders on Facebook, a lifetime of family photos), financial, and practical: dormant accounts of the dead are prime targets for hackers, and an incapacitated person's bills still have to be paid. She uses the case of Stefan Thomas, locked out of a wallet holding bitcoin worth more than $200 million with a few password attempts left, to make the point that no court can recover a key no one recorded.
Terms of Service, Platform Tools, and RUFADAA
Terms of service come first, and most say accounts are nontransferable and passwords may not be shared, so that handing a spouse your login can breach the contract and, potentially, federal law. Platforms offer their own tools, and Cahn walks through Google's Inactive Account Manager and Facebook's legacy contact and memorialization. She then explains the Revised Uniform Fiduciary Access to Digital Assets Act, adopted in the large majority of states, which she helped draft. It covers four fiduciaries (executors, guardians and conservators, trustees, and agents under a power of attorney) and sets a priority: a choice made in a platform's online tool controls; then instructions in a will, trust or power of attorney; then the terms of service; then the statute's defaults. By default a fiduciary can get most digital property and a "catalogue" of communications, the equivalent of the outside of an envelope, but not the content of emails and messages unless the user consented or a court orders it, because the federal Stored Communications Act stands in the way. RUFADAA, she stresses, governs access, not who inherits.
Practical Planning
Cahn's advice is concrete: inventory your accounts and passwords, decide what should happen to each, consider naming a separate, tech-savvy "digital executor," and put the instructions in your estate documents. Never list passwords in a will, which becomes a public record and is hard to amend; use a password manager with a single master credential, and tell your fiduciary where to find it.
What to Know Now
RUFADAA is now law in about 45 states plus the District of Columbia. California, whose 2016 version covered only deceased users, extended it to agents under a power of attorney, conservators and guardians effective January 1, 2025. Massachusetts still has no statute, though bills advanced in its 2025–26 session. The platform tools have expanded: Apple introduced Digital Legacy in December 2021, allowing users to name up to five legacy contacts who can access an account with an access key and a death certificate, and since December 2023 Google may delete personal accounts that have been inactive for two years, which makes setting up Inactive Account Manager more important. Courts continue to apply the content/non-content line, with New York Surrogate's Courts ordering Apple to turn over photos and a catalogue of communications but not message content, and Ajemian v. Yahoo (Mass. 2017) remains the leading decision holding that the Stored Communications Act does not bar a provider from releasing content to a personal representative who lawfully consents.
Cryptocurrency planning has firmer legal footing: the 2022 amendments to the Uniform Commercial Code, including new Article 12 on "controllable electronic records," had been enacted in 33 jurisdictions by the end of 2025, and brokers began reporting digital-asset transactions to the IRS on Form 1099-DA for 2025. A newer category of digital asset is a person's likeness and voice. New York's post-mortem right of publicity (2021) bars unauthorized digital replicas of deceased performers, Tennessee's ELVIS Act (2024) added voice and AI tools, and California's AB 1836 (effective 2025) prohibits digital replicas of deceased personalities without the estate's consent. Estate plans should now say who may authorize an AI recreation of the client.
