An executor for a Manhattan estate recently called my office. Her late father’s will was straightforward—it divided his tangible property between his children. The problem wasn’t the apartment or the investment account; it was a password-protected laptop. The family suspected he owned cryptocurrency, but without access, his digital wallet might as well be on the moon. This is an increasingly common problem. The assets that define a person’s life are no longer just stored in a safe deposit box; they exist on servers, protected by encryption and corporate terms of service.
For generations, an executor’s work was to gather physical things—deeds, stock certificates, jewelry. Now, that fiduciary duty extends to a digital realm where probate law is still catching up. The stewardship of a legacy now means managing private keys, cloud storage, and social media accounts, each with its own rules.
The Executor’s New Burden: Digital Assets
The term “digital assets” is broad. It includes items with direct monetary value, such as online bank and brokerage accounts, PayPal or Venmo balances, and cryptocurrency holdings. But it also includes assets whose value is sentimental: decades of family photos stored in the cloud, email accounts holding a lifetime of correspondence, and social media profiles that serve as a public memorial.
The core challenge is access. An executor, appointed by the Surrogate’s Court and armed with Letters Testamentary, has the legal authority to act on behalf of the estate. But that legal authority often runs into a practical wall: a password. Or a tech company’s rigid terms of service agreement, which may state that an account is non-transferable and that access terminates upon the user’s death.
An executor cannot simply hire someone to break into a decedent’s devices—that can create both civil and criminal liability. Instead, they must follow a formal process that is often slow and frustrating. This is where a decedent’s lack of planning creates significant costs and delays for the family they leave behind.
New York’s Answer to a Modern Problem
New York law directly addresses this problem. The state enacted its version of the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which is codified in our Estates, Powers and Trusts Law. It provides a three-tiered system for determining who can access a person’s digital assets after death.
The law gives priority first to any instructions a user has given directly to a tech company through an online tool—like Google’s “Inactive Account Manager” or Facebook’s “Legacy Contact” feature. If no such tool was used, the law then looks to the decedent’s will, trust, or other estate planning documents. Only if neither of those exists does the platform’s terms of service agreement control access.
This is a critical point. Under EPTL § 13-A-3.1, a person can use their will to explicitly authorize their executor to access their digital world. Without this explicit authorization, the executor may be blocked by a boilerplate clause in a service agreement that no one ever reads. A thoughtfully drafted will can override the terms of service, giving your chosen fiduciary the power they need to marshal all your assets, both tangible and digital.
Intentional Planning for Your Digital Legacy
Probate is a public, court-supervised process. Without deliberate planning, an executor may be forced to petition the court for authority to access specific accounts, a process that adds months and legal fees to the estate administration. It forces your family to spend time and money simply to recover what is already theirs.
Proper stewardship means being intentional. It means treating your digital life with the same foresight as your physical property. This does not mean writing your passwords directly into your will—a will becomes a public document once it is filed for probate. Instead, it involves two key actions:
- Creating a Digital Inventory: Compile a secure list of your digital assets—from email to financial accounts to social media—and note where they are located and how they can be accessed. This inventory should be stored safely with your other important papers, separate from your will.
- Granting Explicit Authority: Work with an attorney to ensure your will or trust contains specific language granting your executor or trustee the authority to access, manage, and distribute your digital property. This single paragraph can save your loved ones countless hours of frustration.
Your online presence is a part of your legacy. It holds financial value, personal history, and sentimental treasures. Leaving your family without a map to this part of your life is like leaving them a house without the keys. The law provides tools to pass on those keys, but it is up to each of us to use them.
A good first step is to begin cataloging your digital life. We provide our clients with a Digital Asset Inventory worksheet to help organize this process. If you would like to receive a copy to begin this crucial work, please call my office and we will send one to you.
