Access to Decedent’s Digital Assets In New York

A number of states, including New York, have adopted the Revised Uniform Fiduciary Access to Digital Assets Act. In New York, this act was made state law through Article 13-A of the Estates Powers and Trusts Law.

Under the Administration of Digital Assets law, the process by which New York fiduciaries can access a decedent’s digital assets is set forth.  The law also provides that a user (the decedent during life) can use an online tool to direct the custodian to disclose to a designated recipient or to not disclose some or all of the user’s digital assets, including the content of electronic communications.  See NY Est Pow & Trusts L § 13-A-2.2 (2021).

Case Study:  In re Scandalios

In In re Scandalios, the decedent, Ric Swezey, died unexpectedly, survived by his spouse and children.

Decedent’s will left the majority of his personal property and the residue of his estate to his executor.  The will did not explicitly authorize his husband to have access to his digital assets, including family photos in his Apple account.  The decedent and executor had shared a home office, and the executor knew that the decedent had used the Apple account to store photos.

The executor sought access to the photos directly from Apple.  Apple required a court order before authorizing any access to the decedent’s Apple account.  The decedent had not used any online form that would permit access after his death.

Photographs Stored In an Apple Account Are Not Electronic Communications Under New York Administration of Digital Assets Act

The New York Court distinguished a request for access to a decedent’s photographs from a request for access to decedent’s electronic communications, stating:

Digital assets are “electronic record[s] in which an individual has a right or interest” (EPTL 13-A-1 [i]), which consist of electronic communications and other digital assets that are not electronic communications. This distinction is significant in that disclosure of electronic communications, unlike disclosure of other digital assets, requires proof of a user’s consent or a court order (EPTL 13-A-3.1; see Matter of Serrano56 Misc 3d 497 [Sur Ct, NY County 2017]).

“Electronic communication” means “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce,” with exceptions (18 USC § 2510 [12]; EPTL 13-A-1 [k]; see Revised Unif. Fiduciary Access to Digital Assets Act § 2, comment at 7 [2015] [describing “electronic communication” to include “email, text messages, instant messages, and any other electronic communication between private parties” [emphasis added]). ——–

Here, decedent’s photographs stored in his Apple account are not “electronic communications,” the disclosure of which, in the absence of a court order, requires consent of the account holder in any form listed under EPTL 13-A-2.2. Therefore, Apple is required to disclose the photographs stored in decedent’s Apple account associated with his Apple ID identifiable by decedent’s two email accounts as listed in the petition (EPTL 13-A-3.2).

The New York court agreed with the executor and issued an order that required Apple to allow the executor access to the photos stored on decedent’s Apple Account (despite finding that the order was not necessary, the court issued the order to satisfy Apple’s request).

Case Study: Matter Of Coleman

In Matter of Coleman, the New York court denied access to a decedent’s digital assets.  Decedent died in his sleep at 24.  He had no will, and had not provided access to digital assets using an online tool.  Decedent’s parents wanted access to his iPhone, and cited several reasons, including to determine his medical issues, to determine if any legal action might be appropriate on behalf of the estate, and to identify and marshal any of his digital assets.

The court provided a comprehensive overview of the administration of digital assets in New York:

A digital asset is defined as an “electronic record in which an individual has a right or interest. The term does not include an underlying asset unless [it] is itself an electronic record” (EPTL 13-A-1[i]). Subsection 1[e] defines the content of an electronic communication as information which:

(1) has been sent or received by a user; (2) is in electronic storage by a custodian providing an electronic-communication service to the public or is carried or maintained by a custodian providing a remote computing service to the public; and (3) is not readily accessible to the public.

Electronic is defined as “relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities” (EPTL 13-A-1[j]).

During his lifetime, a user of digital assets may via an online tool, direct a custodian to disclose or not to disclose to a designated recipient his digital assets including the content of those assets (EPTL 13-A-2.2[a]). An online tool is defined as a means offered by a custodian to a user to provide direction regarding disclosure of digital assets (EPTL 13-A-1[p]). If a user has not [*3]availed himself of such an online tool or one is not offered by a particular custodian, a custodian may recognize for the purposes of disclosure to a personal representative, a decedent’s last will and testament, a trust or another type of agreement which disposes of these digital assets.

If a decedent used an online tool or left a record disposing of the content of his digital assets, a custodian must provide that content to the decedent’s personal representative (EPTL 13-A-3.1). The turnover of this information may also be mandated by court order. The subsection sets forth the requirements with which a representative must comply before disclosure may be had [FN2] .

As to non-content digital assets (EPTL 13-A.3.2), such as a catalogue of the electronic communications [FN3] sent or received by the user, calendar information and contact lists, unless the user provided or a court directs otherwise, they are available to a fiduciary upon presentation to the custodian a written request for such information, the death certificate, the letter of appointment and such additional information as the custodian may request. The custodian shall also comply with the request if a court finds that the non-content digital assets are necessary for the administration of the estate (EPTL 13-A-3.2[d][4][B]).

In accordance with subsection 2.4[a], the custodian of digital assets has complete discretion to either grant a fiduciary of a deceased user (1) full access to a user’s account; (2) partial access to a user’s account so as to allow tasks to be performed which are required of the fiduciary; or (3) provide a fiduciary a copy in a record of any digital asset that the user could have accessed if he was alive on the date of the request. In fact, in contravention of the wishes of the user, who has requested to disclose part, but not all, of his assets, the custodian can choose not to comply if the user’s directions present an undue burden on the custodian (EPTL 13-A-2.4).

In this case, the court denied the request on the basis of its summary of New York law and granted access only to “non-content” information.