The Estate Planning Gap Almost Nobody Plans For
Most people think of an estate in terms of a house, a car, a bank account, maybe a retirement fund. Fewer people think about their email inbox, their photo library, their cryptocurrency wallet, or their social media accounts, even though many of us spend more time logged into these than we do thinking about our physical property.
That gap matters. When someone passes away or becomes incapacitated without addressing digital assets, families often find themselves locked out of accounts that hold sentimental photos, financial records, or actual monetary value, with no clear legal path to get back in. Tech companies aren't in the business of handing over account access based on a family member's say-so, and for good reason: privacy law and platform terms of service are designed to protect the account holder, not necessarily the people left behind.
What Counts as a Digital Asset
Under New Mexico law, a digital asset is broadly defined and includes:
- Email accounts and stored messages
- Social media profiles (Facebook, Instagram, X, LinkedIn, and similar)
- Cloud storage accounts (Google Drive, iCloud, Dropbox) and anything stored in them
- Online financial accounts, including banking and investment platforms accessed only through an app or website
- Cryptocurrency and digital wallets
- Digital photo and video libraries
- Websites, blogs, and domain names
- Online business accounts, including e-commerce stores and ad accounts
- Subscription services and loyalty program balances
Some of these have real financial value. Others hold sentimental value that's just as important to a grieving family. Either way, without a plan, access to all of it becomes uncertain.
New Mexico's Digital Assets Law, in Plain Terms
New Mexico adopted the Revised Uniform Fiduciary Access to Digital Assets Act in 2017 (NMSA 1978, Sections 46-13-1 through 46-13-18). It sets up a framework for how fiduciaries, meaning personal representatives, trustees, guardians, and agents under a power of attorney, can request access to a person's digital accounts.
The law generally works in a specific order of priority:
- A platform's own online tool. Many major platforms, including Google and Facebook, offer a built-in legacy contact or inactive account manager tool. If you've designated someone through the platform itself, that designation generally controls and overrides what's in your will.
- Your estate planning documents. If you haven't used a platform tool, a will, trust, or power of attorney that specifically grants digital asset authority is the next line of authority.
- The platform's terms of service. If neither of the above applies, the custodian's own terms of service govern what a fiduciary can access, which is often the least favorable outcome for a family trying to get in.
This is why generic, older estate planning documents often fall short. A power of attorney drafted before this law existed, or one that only mentions "financial accounts" in general terms, may not give your agent clear authority to access your email or cloud storage.
Why a Regular Power of Attorney Often Isn't Enough
Many people assume that naming an agent under a general power of attorney automatically covers digital accounts. It doesn't always work that way. Custodians (the tech companies and platforms holding your data) are cautious about disclosure, partly because of federal privacy laws like the Stored Communications Act. A power of attorney needs specific language addressing digital assets and, in some cases, needs to expressly authorize disclosure of the content of electronic communications, not just account access, or a custodian may refuse to cooperate.
Cryptocurrency Deserves Special Attention
Cryptocurrency is often the digital asset families are least prepared for, and the one most likely to be lost permanently. Unlike a bank account, there's no customer service line to call if a password or private key is lost. If you hold cryptocurrency and haven't documented how to access your wallet, including private keys, seed phrases, and which exchange or wallet software you use, that value can disappear entirely when you're no longer able to access it yourself. This information needs careful handling: too little detail and it's inaccessible, too much detail stored insecurely and it's a target for theft. An attorney can help structure this safely as part of a broader plan.
Building a Digital Asset Plan
A few concrete steps make a real difference:
- Create a digital asset inventory. List major accounts, from email and banking to social media and subscriptions. You don't need to include passwords in your will (wills often become public record during probate), but your fiduciary should know these accounts exist.
- Use platform legacy tools where available. Google's Inactive Account Manager and Facebook's legacy contact settings are free and take a few minutes to set up.
- Update your power of attorney and will language. Make sure your documents specifically authorize your fiduciary to access digital assets and, where appropriate, the content of electronic communications.
- Store sensitive access information securely. A password manager with emergency access features, or clear instructions kept with an attorney, works better than a sticky note or an outdated document.
- Revisit this plan periodically. Digital habits change fast. An inventory built five years ago is probably missing accounts you use every day now.
Frequently Asked Questions
Can my family access my email account after I die without any planning? Not automatically. Under New Mexico law, a fiduciary generally needs either a platform-designated tool, specific authority in your estate planning documents, or a court order, depending on the custodian's own policies.
Do I need to list my passwords in my will? No, and you generally shouldn't. Wills can become part of the public probate record. Instead, keep an inventory of accounts separate from your will, and store access details securely, such as in a password manager with emergency access features.
What happens to my cryptocurrency if I don't document how to access it? It can become permanently inaccessible. There's no central authority to recover a lost private key or seed phrase, so documentation and secure storage of this information are critical parts of a modern estate plan.
Does a power of attorney automatically cover my digital accounts? Not necessarily. Many older or generic powers of attorney don't specifically address digital assets, which can lead a custodian to deny access. Digital asset authority should be addressed explicitly.
