According to the New York State Estates, Powers & Trusts Law (“EPTL”) Article 13-A, a digital asset is “an electronic record in which an individual has a right or interest.” Examples of digital assets include an email account, a Facebook page, a YouTube channel, a Twitter account, and many more. The growing use of the Internet has broadened what is considered one’s “assets,” as more and more people have become dependent on their computers and reliant on cloud-based storage.
Article 13-A of the EPTL was signed into law on September 29, 2016 to address the growing issue of digital assets. Prior to the adoption of this law, a personal representative of an estate had little access to a decedent’s digital accounts and assets. The clickwrap agreements that many users blindly agreed to in order to access a website would prevail upon one’s passing. This meant that the website provider controlled what access a personal representative of an estate would have had to the decedent’s account, creating many issues for the administration of the estate.
Fortunately, the law now requires a custodian of electronic records (the website in question) to disclose to a decedent’s personal representative “a catalogue of electronic communications sent or received by the deceased user.” This ensures that a personal representative will at least be entitled to the decedent’s contact list; however, it does not ensure access to the decedent’s electronic content. For clarification on what is considered “content,” the Court in Matter of Serrano, a New York Surrogate’s Court case decided in June of 2017, held that the decedent’s calendar was not included in the definition, and therefore the personal representative was entitled to access it.
That being said, although the law has addressed this growing concern, a personal representative remains unable to receive automatic access to the content of a decedent’s digital communications. This is one of the many reasons why it is important for people to periodically review and update their Last Will and Testaments. The only way to ensure that a personal representative will have no obstacles when attempting to access a decedent’s digital assets is to address it in the decedent’s Will. A Will can explicitly allow a personal representative to take any actions necessary in dealing with the decedent’s estate.
We advise our clients to create a “personal Bible” to keep track of all their important information to assist loved ones in the event of an emergency. Such information can include, for example, doctors’ contact information, the location of pertinent documents, and the existence of insurance policies. It would also be an ideal location for usernames and passwords for the client’s digital assets.
To further discuss digital assets and the effect they may have on your estate plan, contact Katz Chwat, PC to set up an appointment.
Posted in: Estate Planning