Digital Assets in Probate: Cryptocurrency, Social Media, and Online Accounts

The Digital Estate: A Growing Practice Area

The short answer is that the average American now holds dozens of digital accounts at death — email, social media, cloud storage, streaming subscriptions, online banking, and, increasingly, crypto wallets and NFT portfolios. RUFADAA is law in 47 states and DC as of 2024 (per the Uniform Law Commission), yet most estate plans drafted even five years ago contain no meaningful guidance on how to handle any of it. That's a client service gap — and a real fiduciary liability — if you're not paying attention.

Rules governing fiduciary access to digital assets were largely undefined until the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), promulgated by the Uniform Law Commission in 2015. According to the Uniform Law Commission (uniformlaws.org), RUFADAA has now been enacted in 47 states and the District of Columbia, making it the primary statutory framework governing fiduciary access to digital accounts. Attorneys who aren't familiar with RUFADAA's three-tier consent framework risk giving clients incorrect advice — or worse, exposing personal representatives to liability under the Computer Fraud and Abuse Act (CFAA, 18 U.S.C. §1030) for unauthorized account access.

RUFADAA's Three-Tier Consent Framework

RUFADAA establishes a priority hierarchy for determining whether a fiduciary can access digital assets. At the top is an online tool provided by the custodian—a mechanism that allows users to designate who can access their account after death (Google's Inactive Account Manager and Facebook's Legacy Contact are examples). A designation made through an online tool overrides conflicting instructions in a will or trust.

Second in priority is the estate planning document itself. If no online tool designation exists, RUFADAA allows access if the will, trust, or power of attorney explicitly authorizes the fiduciary to access digital assets.

Generic language granting broad fiduciary powers may not be sufficient; many courts and practitioners recommend specific RUFADAA authorization language. Third, and lowest in priority, is the platform's terms of service agreement. If neither an online tool designation nor a document authorization exists, the platform's own terms govern—and most platform terms restrict or prohibit account access by third parties, including fiduciaries.

The practical implication for estate planning attorneys is straightforward: every estate plan should include explicit RUFADAA authorization and every client should be guided to use the online tools available on major platforms. This is a low-cost addition to any estate plan that can prevent significant post-death complications.

Cryptocurrency: The Access and Valuation Challenge

Cryptocurrency presents unique challenges that go beyond ordinary digital account access. A cryptocurrency wallet is controlled by a private key—a long alphanumeric string that functions like a password.

Without the private key, the cryptocurrency is inaccessible, period. There is no customer service department to call, no account recovery process, and no court order that can compel a blockchain to release funds. Bitcoin held in a self-custody wallet for which the private key has been lost is effectively destroyed at the holder's death.

For this reason, cryptocurrency holdings require proactive planning. Attorneys should counsel clients with significant crypto holdings to document their private keys and wallet access information in a secure location accessible to their executor—a hardware wallet with a seed phrase kept in a fireproof safe or a bank safe deposit box, for example.

Some clients use specialized services that hold keys in escrow for estate purposes. The documentation should be specific enough to allow access but not so carelessly stored that it becomes a theft risk during life.

Valuation of cryptocurrency for estate tax purposes adds another layer of complexity. The IRS treats cryptocurrency as property, not currency, and its guidance on virtual currency (available at IRS.gov) requires fair market value to be determined as of the date of death using the price on the exchange or platform where the decedent held the asset.

For volatile assets, the date-of-death value may differ dramatically from the value a few days before or after—creating both planning opportunities (if the fiduciary can time distributions) and potential disputes with beneficiaries if the value drops between death and distribution. Our Estate Tax Calculator can assist with valuation scenarios for mixed digital and traditional asset portfolios.

NFTs and Other Digital Collectibles

Non-fungible tokens (NFTs) present valuation challenges that rival cryptocurrency but with added complexity around platform custody and transferability. An NFT may represent a piece of digital art, a gaming asset, a music royalty, or a membership interest—and the rights associated with it vary by the smart contract underlying the token. Some NFTs carry ongoing royalty rights that generate income; others are purely collectible items whose value fluctuates with market sentiment.

Personal representatives handling estates with NFT holdings should immediately secure access to the wallet addresses holding the NFTs and inventory the assets using blockchain explorer tools before taking any action. The fiduciary duty of preservation applies to digital assets just as to physical property. Selling an NFT at a distressed price due to a failure to understand its market value could expose the personal representative to liability.

Attorneys should also be aware that some digital assets exist on platforms that may not survive the administration period. A social game item or in-platform currency held on a gaming platform that shuts down becomes worthless. Prompt inventory and, where appropriate, liquidation or transfer may be prudent.

Social Media and Email Accounts

Social media accounts have both sentimental and, in some cases, financial value at death. A monetized YouTube channel, a large Instagram following with brand partnerships, or a Substack newsletter with paid subscribers can represent significant ongoing income streams. These assets should be treated like any other business asset in the estate, with the personal representative authorized to access and manage them pending distribution or liquidation.

Most major platforms offer memorialization options. Facebook allows a designated Legacy Contact to manage or memorialize a profile.

Instagram and Twitter/X have memorialization and removal request processes. Google's Inactive Account Manager allows users to designate a trusted contact to receive account data. These platform-specific processes operate independently of state law and RUFADAA, but they are typically the most practical path to accessing account content.

Email accounts deserve special attention. They often contain financial records, contractual documents, and communications that are relevant to estate administration—not just sentimentally but legally.

Under RUFADAA, a personal representative can request a catalog of the user's email (subject lines, sender/recipient, and dates) from the custodian without being granted full content access, unless the decedent specifically authorized it. This tiered access reflects a deliberate policy balance between fiduciary need and third-party privacy.

Practical Estate Planning Guidance for Digital Assets

Given how quickly digital assets and account rules have changed, attorneys should incorporate a digital asset inventory checklist into their standard estate planning engagement. The checklist should cover: financial accounts (banks, brokerages, PayPal, Venmo), cryptocurrency wallets and exchanges, social media profiles and their monetization status, email accounts, cloud storage (photos, documents), domain names and websites, subscription services with residual value (streaming libraries, software licenses), and any loyalty points or rewards programs with transferable value.

The estate plan itself should include explicit RUFADAA authorization, the appointment of a technically capable personal representative or trustee (or authorization to engage technical assistance), and guidance on the disposition of sentimental versus financial digital assets. Some clients want their social media memorialized; others want it deleted. These wishes should be documented just as clearly as wishes for physical property.

For clients with significant cryptocurrency holdings, recommend a separate digital asset memorandum — kept outside the will (to avoid public disclosure) and updated regularly — that documents wallet addresses, exchange accounts, and key storage locations. Store it securely and tell the executor exactly where to find it. The intersection of digital assets with estate tax planning will only grow as crypto adoption increases, and attorneys who build the expertise now will be ready when these estates become routine.