A client’s son recently called my office from Brooklyn. His mother had passed away, and he was trying to access her iCloud account to retrieve decades of family photos—the only copies of his childhood memories. He had her password, but Apple’s terms of service blocked his access. The account was legally hers, and upon her death, it was frozen. He was locked out of his own history, caught between a user agreement he’d never seen and the grief of losing his mother.
This situation is now common. We live our lives online, creating a second legacy of assets that are invisible, intangible, and governed by rules most of us have never read. Planning for the stewardship of these assets is not a technicality; it is a fundamental part of modern estate planning. Without a deliberate plan, you risk leaving your family with a puzzle they cannot solve and locking away sentimental or financial value forever.
What the Law Considers a “Digital Asset”
When I talk about digital assets, clients often think of cryptocurrency. That’s part of it, but the legal definition is much broader. A digital asset is any electronic record in which you have a right or interest. This includes the obvious—bank accounts, brokerage portals, and crypto wallets—but also the less obvious:
- Email accounts and cloud storage (like the family photos on iCloud)
- Social media profiles (Facebook, LinkedIn, etc.)
- Domain names and blogs
- Loyalty program points (airlines, hotels)
- Digital intellectual property (manuscripts, photos, code)
Some of these have clear financial value. Others hold purely sentimental value. To your executor, however, both are property that must be dealt with. The problem is that access is controlled not by property law, but by contract law—the terms of service agreement you clicked “agree” on years ago.
To address this, New York enacted the Fiduciary Access to Digital Assets Act, codified in EPTL Article 13-A. This law creates a three-tiered system for determining who can access your accounts after you are gone. It gives legal authority to your chosen fiduciary—your executor, trustee, or agent—but only if you have given them the right tools to act.
The Default Is “No Access”
Most service providers’ terms of service state that an account is non-transferable and that any rights to the account terminate upon the user’s death. This is their default position. Without a plan, your family and your executor will run straight into this wall. The company is not being malicious; it is protecting itself and, in its view, your privacy.
Your executor cannot simply show up with a death certificate and a copy of your will and expect to be granted access. They will likely be told that the account is locked, or worse, deleted. Forcing the issue often requires a court order from the Surrogate’s Court, a process that costs time and money—draining estate resources to retrieve what could have been made accessible with a single sentence in a will.
This is the conflict that EPTL Article 13-A was designed to solve. It allows you to override a platform’s terms of service, but you must be proactive. The law respects your direction above all else. If you provide no direction, the platform’s rules prevail.
Creating a Deliberate Path for Your Fiduciary
Granting access to your digital life requires intentional planning. It is not enough to leave a list of passwords in a desk drawer—that can create its own security risks and may not grant the legal authority your executor needs. In my practice, we focus on a few key steps.
First, use the tools the platforms provide. Many large tech companies, like Google and Facebook, have created their own legacy-planning tools. These allow you to name a “legacy contact” or dictate what happens to your account when you pass away. Under New York law, any direction you provide using one of these online tools will override instructions in your will. It is the clearest and most direct expression of your intent.
Second, your estate planning documents must be updated. Your will, trust, and power of attorney should include specific language that grants your fiduciary the authority to access, manage, and distribute your digital assets. Without this explicit authority, your executor may be powerless. They might see a recurring charge from a service on a bank statement but have no legal standing to log in and cancel the account.
Finally, you need an inventory. This is not a list of passwords. It is a list of your digital accounts, from financial institutions to social media, that your executor will need to know exist. This document should be stored securely with your other estate planning documents, not on the very computer or cloud account that will be locked upon your death.
Stewardship. It’s about more than just money. It’s about ensuring the parts of your life that you lived online are passed on, protected, or wound down with the same care you took in planning for your physical property. A few deliberate steps today can prevent a world of frustration for your family tomorrow.
The first step is simply knowing what you have. My firm provides clients with a Digital Asset Inventory worksheet to help them begin organizing this critical information. If you would like a copy to frame your own thinking, please call my office and we will send one to you.
