A few years ago, a family from Long Island came to my office. Their father, a passionate amateur photographer, had just passed away. He left behind decades of family history—births, holidays, graduations—all stored on a cloud service. The problem? No one had the password. The company, citing its terms of service, refused to grant the family access. Those memories, a core part of their family legacy, were locked behind a digital wall, likely to be deleted forever.
This is a modern estate problem I see with increasing frequency. We meticulously plan for the disposition of homes, bank accounts, and physical heirlooms, but often overlook the vast digital property we accumulate. These assets are not just sentimental; they can hold significant financial value. Everything from a social media account to a cryptocurrency wallet is part of your estate. Without a deliberate plan, you leave the fate of these assets—and your family’s access to them—to the mercy of corporate privacy policies.
Stewardship. That is our work. It means being the custodian not just of what you can touch, but of your entire legacy.
What Qualifies as a Digital Asset?
The term “digital asset” is broader than many people realize. It’s any electronic record in which you have a right or interest. My clients are often surprised by the scope of what this includes. We are not just talking about a high-value Bitcoin wallet or an e-commerce business. The category is vast.
Think of it in two main categories:
- Assets with Financial Value: These are the most obvious. Cryptocurrency, domain names, blogs that generate advertising revenue, online payment accounts like PayPal or Venmo, and digital storefronts are all property. They need to be managed, transferred, or wound down by a fiduciary just like any other business interest or financial account.
- Assets with Sentimental Value: This is the category that contains so much of a family’s story. Email accounts are a diary of a person’s life. Social media profiles are curated records of relationships and experiences. Cloud accounts hold family photos, videos, and important documents. While they may not have a market value, their loss can be devastating to a family.
Ignoring these assets in your estate plan creates a serious gap. Your executor might know you owned a house, but they will have no way of knowing you owned a specific domain name or had a valuable collection of digital art unless you tell them.
New York Law and Your Fiduciary’s Right to Access
For years, a legal gray area existed. A company’s terms of service agreement often conflicted with the authority granted to an executor in a will. Families were left to plead with tech companies, with little success. New York law now provides a clear framework.
The operative statute is the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), codified in our Estates, Powers and Trusts Law as EPTL Article 13-A. This law creates a clear, three-tiered hierarchy for determining who can access, manage, and distribute your digital property:
- Tier 1: Online Tools. If a platform (like Google or Facebook) offers a tool to name a “legacy contact” or designate a recipient for your data, your choice there will be honored above all else. This is your most direct instruction.
- Tier 2: Your Estate Plan. If you have not used an online tool, your will, trust, or power of attorney controls. By explicitly granting your chosen fiduciary—your executor, trustee, or agent—the authority to access your digital assets, you give them the legal standing to compel companies to cooperate.
- Tier 3: Terms of Service. If you have done neither of the above, the platform’s original terms of service agreement will govern. Most of these agreements are written to protect the company, not your family, and often default to restricting or denying access entirely.
The takeaway is clear: being intentional is critical. Relying on the default (Tier 3) is a gamble. By addressing digital assets directly in your estate plan, you move to Tier 2, giving your chosen fiduciary the power they need to carry out your wishes and preserve your legacy.
A Prudent Plan for Your Digital Legacy
How do we put this into practice? The goal is to provide your fiduciary with two things: legal authority and practical access.
First, we grant the authority within your legal documents. In your will and power of attorney, we include specific language authorizing your executor and agent to manage your digital assets. This is the key that unlocks the protections of EPTL Article 13-A.
Second, we plan for access. This does not mean writing your passwords into your will. A will becomes a public document once it enters probate in Surrogate’s Court, and listing sensitive information there would be a security nightmare. Instead, the prudent approach is to create a separate digital asset inventory. This document lists your accounts, from email to utilities to crypto wallets, along with usernames and instructions for accessing them. This inventory is not a legal document itself; it is a practical roadmap for your executor.
This inventory should be stored securely—either in a safe deposit box, with your attorney, or through a digital password manager that allows for a designated emergency contact to be granted access upon your death. Your will directs your executor to this inventory, but the sensitive data itself remains private.
A prudent first step is to begin cataloging your digital life. You might be surprised at how extensive your digital footprint is. To help you get started, my firm has developed a digital asset worksheet. You can request a copy from our office to begin organizing this crucial part of your estate before we speak.
