Administering the Modern Estate: A Guide for Obtaining a Decedent’s Digital Assets

As we move further and further into the digital age, gone are the days when a fiduciary could merely collect the decedent’s mail to discover assets and claims, review the decedent’s address book to find potential heirs, and collect photographs to distribute to family members. Increasingly we as a society are relying on our often password protected smartphones to engage apps for banking and bill paying, to check emails for paperless e-statements, to maintain our contact list, and to take photos of life’s precious moments. So how does a fiduciary[1] access these digital assets to properly administer a decedent’s estate? The answer is found in Article 13-A of the Estates, Powers and Trusts Law.

Article 13-A creates mechanisms for both individuals to control access to their digital assets posthumously and for fiduciaries to obtain such access. Digital assets are defined as “electronic record[s] in which an individual has a right or interest”[2] and can be divided into two categories: (1) electronic communications, such as emails, text messages or other communications between private parties;[3] or (2) other assets that are not communications, such as photographs,[4] contact lists[5] and calendars.[6] A fiduciary is charged with the same duty of care, loyalty and confidentiality in managing the decedent’s digital assets as they are with managing the decedent’s tangible personal property.[7] Thus, the fiduciary must first determine whether the decedent, also known as the user,[8] provided for post-death disclosure of his or her digital assets, and, secondly, whether the digital asset is an electronic communication or not.

Decedent’s Directive

A user may create a post-death disclosure directive under a service agreement for the digital account, called an online tool.[9] The online tool is a separate and distinct agreement from the traditional terms-of-service agreement. Apple and some social media sites provide for a “legacy contact” or as Google calls it, an “inactive account manager,” which is a person or persons that the decedent designates to access the digital account post-death. The online tool may also allow a user to require deletion of the account after their death.

A user may also grant, by will, trust, power of attorney or other instrument, an individual with authority to access the user’s digital account.[10] The online tool directive is controlling, however, if contrary to a directive in the user’s will, trust, power of attorney or other instrument.[11] Thus, it is imperative in the estate planning stage to counsel clients regarding digitally stored assets and information.

If the decedent neither designated a so-called legacy contact in an online tool directive nor provided for such a successor under an estate planning instrument, the directive in the traditional terms-of-service agreement between the user and the service provider, also called the custodian,[12] will control.[13] These agreements tend to be restrictive, and are designed to protect the custodian from liability under various federal and state privacy laws. Many of us are guilty of clicking “I agree” to these agreements without thoroughly reading them. In this circumstance, the custodian will require a court order before making disclosure for fear of violating federal or state law.

Disclosure of Electronic Communication Versus Other Digital Assets

After determining whether the decedent made a post-death disclosure directive or not, the fiduciary must next determine whether the digital asset sought for disclosure consists of electronic communications or some other type of digital asset. The extent of disclosure of electronic communications is dependent on several factors. In the absence of the decedent’s directive granting disclosure in either an online tool, will or similar instrument, disclosure of electronic communications to the decedent’s fiduciary may only be made by court order.[14] Further, absent the decedent’s directive, disclosure of electronic communications to the decedent’s fiduciary is limited to only a catalogue of the communications[15] unless the fiduciary can make a showing to the court that disclosure of the communications is reasonably necessary to administer the decedent’s estate.[16]

A catalogue of the electronic communications consists of the “to and from” line, the sender or recipient’s email address and the time and date of the communication, whereas the content of the communication refers to the subject line and actual text of the communication. Contact lists are also treated as catalogue information.[17] Other digital assets that are not communications, like photographs and calendar information, are required to be disclosed to the fiduciary by the custodian unless the decedent or court directs otherwise.[18]

Procedure for Obtaining Disclosure of Digital Assets

The procedure for obtaining disclosure of electronic communication, where the decedent granted post-death access in either an online tool, will, trust or other instrument, and for obtaining catalogue information or other digital assets is very similar. The fiduciary, as either an executor, administrator or voluntary administrator under Article 13 of the Surrogate’s Court Procedure Act, must provide to the custodian: (1) a written request for disclosure; (2) a copy of the decedent’s death certificate; (3) certified copies of the letters appointing the fiduciary; and if requested by the custodian, (4) information to identify the digital account; and (5) evidence linking the account to the decedent.[19] Additionally, if the decedent provided a post-death disclosure directive in a will, trust or other instrument and electronic communications are sought, the fiduciary must also provide the custodian with a copy of such instrument.[20] Whereas, if only catalogue information or another digital asset not consisting of communications is sought, the fiduciary must provide the custodian with an affidavit stating that disclosure of the digital asset is reasonably necessary for the administration of the decedent’s estate.[21]

The custodian has discretion in the amount of disclosure, if any, it provides in response to a request by a fiduciary[22] and may charge a reasonable administrative fee for the cost of disclosure.[23] Where the decedent failed to give an affirmative directive allowing disclosure of his or her digital assets or where the custodian requires, the decedent’s fiduciary must seek a court order for disclosure.

To obtain a court order, the fiduciary should commence a discovery proceeding pursuant to SCPA 2103. The petition should: (1) identify the specific digital asset sought for disclosure and the custodian who holds the account; (2) state the basis for the petitioner’s knowledge that the specific account is associated with the decedent; (3) state whether the decedent provided an affirmative directive granting disclosure in an online tool or by will, trust or other instrument; and (4) explain why the asset is reasonably necessary for administration of the decedent’s estate.[24] It may also be prudent to provide any proposed order or language provided by the custodian. A citation must be issued and served on the custodian.

Although the custodian usually does not interpose objections or even respond to the citation, the court nevertheless must balance the need for disclosure of the asset to administer the decedent’s estate and the decedent’s privacy.[25] These proceedings are entertained on a case-by-case basis. If the court denies disclosure, it is typically done without prejudice to allow the fiduciary to commence a new proceeding demonstrating the need for disclosure to properly administer the decedent’s estate based on additional evidence.[26]

Disclosure of digital assets may also be sought as part of a small estate proceeding pursuant to Article 13 of the SCPA. The court may provide a voluntary administrator with authority to access the decedent’s digital assets in the certificate issued under SCPA 1304(5), so long as the asset does not exceed $50,000.[27] The small estate affidavit should provide the same information regarding the digital asset as provided in a petition for discovery under SCPA 2103 as outlined above. Jurisdiction, however, is not required over the custodian in small estate proceedings.

Conclusion

As our reliance on technology becomes ever more prevalent, the practitioner’s role in counseling clients on digital assets is more important than ever. Standard practice should now include creating an inventory of all of the client’s digital assets and crafting a plan for access posthumously. Failure to do so may cause a delay, or even a complete loss, of monetary and sentimental digital assets.

This article appears in a forthcoming issue of Trusts and Estates Law Journal, the publication of the Trusts and Estates Law Section. For more information, please visit nysba.org/trusts.

Diane Matero is a court attorney-referee in Kings County Surrogate’s Court, where she also serves as the court’s internship program coordinator. She is a published author and lecturer on various trusts and estates topics. Prior to her current role, she served as principal law clerk to Surrogate Rosemarie Montalbano, counsel to the Queens County clerk and was a practitioner concentrating in trusts and estates law.

Endnotes

[1] EPTL 13-A-2.1 also applies to guardians, trustees and agents under a power of attorney but for purposes of this article, the focus will be on fiduciaries administering estates. For guardians, see EPTL 13-A-3.8; for trustees, see EPTL 13-A-3.5 through 3.7; for agents under a power of attorney, see EPTL 13-A-3.3 and 13-A-3.4.

[2] EPTL 13-A-1(i).

[3] In re Molloy, N.Y.L.J., Jul. 7, 2023, p. 7, col. 2 (Sur. Ct., N.Y. Co.).

[4] In re Swezey, N.Y.L.J., Jan. 17, 2019, p. 23, col. 3 (Sur. Ct., N.Y. Co.).

[5] In re Serrano, 56 Misc. 3d 497, 54 N.Y.S. 3d 564 (Sur. Ct., N.Y. Co. 2017).

[6] Id.

[7] EPTL 13-A-4.1(a).

[8] EPTL 13-A-1(y).

[9] EPTL 13-A-1(p); EPTL 13-A-2.2(a).

[10] EPTL 13-A-2.2(b).

[11] EPTL 13-A-2.2(a).

[12] EPTL 13-A-1(g).

[13] EPTL 13-A-2.2(c).

[14] EPTL 13-A-3.1(e)(3).

[15] EPTL 13-A-3.2.

[16] EPTL 13-A-3.1(e)(3)(D).

[17] In re Serrano, 56 Misc. 3d 497, 498; see also In re Molloy, N.Y.L.J., Jul. 7, 2023, p. 7, col. 2.

[18] In re Swezey, N.Y.L.J., Jan. 17, 2019, p. 23, col. 3.

[19] EPTL 13-A-3.1; EPTL 13-A-3.2.

[20] EPTL 13-A-3.1(d).

[21] EPTL 13-A-3.2(d)(3).

[22] EPTL 13-A-2.4(a).

[23] EPTL 13-A-2.4(b).

[24] In re Gager, N.Y.L.J., June 28, 2019, p. 27, col. 1 (Sur. Ct., N.Y. Co.).

[25] In re White, N.Y.L.J., Oct. 3, 2017, p. 25, col. 1 (Sur. Ct., Suffolk Co.).

[26] In re Coleman, 63 Misc. 3d 609, 615, 96 N.Y.S. 3d 515 (Sur. Ct., Westchester Co. 2019); In re Molloy, N.Y.L.J., Jul. 7, 2023, p. 7, col. 2.

[27] SCPA 1301(1).