A client recently came to my Manhattan office with a difficult problem. Her father had passed away, and while he left a will, he never mentioned his extensive digital life. He was an early cryptocurrency investor and had a lifetime of family photos stored in a cloud account. The family had no passwords, no access, and no legal authority to get them. They were facing a court battle with a tech giant just to retrieve their own family history—all while grieving. This is the new reality of estate planning.
For decades, the work of an estate attorney centered on tangible assets—real estate, bank accounts, and physical property. A well-drafted will and perhaps a trust were sufficient. That framework is now dangerously incomplete. The stewardship of a family’s legacy extends to a world the law is still catching up with.
The Plan Is More Than a Will
A will is a foundational document, but it is also a public one that must pass through Surrogate’s Court. This process, known as probate, can be lengthy, costly, and open to public view. For many of the families I represent, privacy and efficiency are paramount. This is why our conversations almost always turn to trusts.
A revocable living trust, for example, allows you to transfer assets into a legal entity that you control during your lifetime. Upon your death, the assets pass directly to your beneficiaries according to the trust’s terms, bypassing probate entirely. This is not about tax evasion—it is about control, privacy, and making a difficult time for your family substantively easier. The person you name to manage this process—your successor trustee—steps in without needing a court’s permission slip.
The other critical element is planning for incapacity, not just death. A will does nothing for you while you are alive. A durable power of attorney and a health care proxy are the documents that empower a trusted agent to manage your finances and make medical decisions if you cannot. Without them, your family may be forced to petition a court to have a guardian appointed, a process that is both emotionally taxing and expensive.
Your Digital Legacy and New York Law
Your digital footprint is part of your estate. It has both sentimental and financial value. This includes everything from social media accounts and email to domain names and digital currencies. Simply putting a list of passwords in a safe deposit box is not a legal solution. Your executor needs the legal authority to access, manage, and distribute these assets.
New York law provides a specific framework for this. The Estates, Powers and Trusts Law (EPTL) was updated to include Article 13-A, which directly addresses a fiduciary’s right to access digital assets. This statute gives your executor or trustee the legal standing to compel tech companies to grant access. Without specific language in your estate planning documents authorizing this power, however, your fiduciary may face a wall of corporate resistance. We now make this a standard part of every plan we draft.
Planning for these assets must be deliberate. Who should manage your professional social media presence? Who has the right to access decades of family emails and photos? Who even knows where all your digital assets are? Answering these questions now prevents immense frustration and potential loss for your family later.
The Choice of a Fiduciary
Perhaps the most important decision you will make is not which assets go where, but who you will entrust to carry out your wishes. The executor of your will, the trustee of your trust, and the agent under your power of attorney are all fiduciaries. They have a legal and ethical duty to act in the best interests of your estate and its beneficiaries.
This is a significant burden. It requires diligence, integrity, and the ability to communicate with beneficiaries who may be grieving or in conflict. I have seen poorly chosen fiduciaries inadvertently destroy family harmony. The role is not an honor—it is a demanding job. You must consider whether your chosen person has the time, the temperament, and the financial acumen to perform the required duties. In some cases, a professional or corporate trustee is a more prudent choice, providing a neutral and experienced hand to guide the process.
Your plan is only as strong as the person you empower to execute it. This choice deserves careful, dispassionate thought. Stewardship.
A plan drafted years ago may not account for the legal and technological realities of 2024. The law evolves, families change, and assets shift. A static plan is a deficient one. If your existing documents do not address digital assets or if your named fiduciaries are no longer the right fit, your plan needs a review.
A logical first step is to create an inventory. I often ask clients to list their five most significant assets—both tangible and digital—and the people they wish to be their primary stewards. This simple exercise can bring immediate clarity and forms the basis for a productive conversation about protecting your legacy.
