When putting together an estate plan, people always consider what to do with their house, their car, their jewelry, and their other tangible assets. In today’s world, however, we also need to remember to plan for our digital assets.
Our digital lives have become more important with the advent of advanced technology. Currently, there are over 1 billion active Gmail account users and almost 2 billion fans of Facebook. In addition, more people are managing their bank accounts, paying their bills, or otherwise living their financial lives in cyberspace. Although these new found digital options have often made our lives easier and more enjoyable, they can leave difficult challenges for our loved ones in the event we pass away.
One of the first tasks facing an executor of an estate is to collect the assets of the decedent. If the decedent managed their finances digitally, then it may be difficult for the executor to access the information they need to perform their duties. In response to this problem, New York State adopted Article 13-A of the Estates, Powers, and Trusts Law (EPTL) last September, which is entitled “Administration of Digital Assets”.
Digital assets are electronic records to which an individual has a right or interest. Examples would include copies of electronic bank account statements, e-mail, or social media content. New York passed Article 13-A of the EPTL in response to difficulties fiduciaries were having in accessing the digital information left behind by decedents. Too often, custodians of that information, such as e-mail providers, were simply refusing to allow access to a decedent’s digital assets.
Article 13-A addresses the access problem in three ways. First, it allows people to utilize an on-line tool to authorize access to their digital assets after they die. Second, it allows people to set forth their consent to digital access in their will or trust. Third, it sets forth a process for court ordered access in the event an on-line tool or direction in a will or trust is not utilized.
In order to plan for your digital after life, it would make sense to take advantage of one of the first two options provided by Article 13-A. For example, Google account users may utilize the on-line tool option by going to the Personal Information and Privacy section of their account, where they can set up an Inactive Account Manager. The Manager allows the user to name Trusted Contacts who may have access to the account holder’s information after they pass away.
The second option allows you to put an explicit direction regarding access in your will or trust. As with the on-line tool option, that direction may be particularized to allow access to certain information and to prohibit access to other information. It is important to note that any authorization set forth in an on-line tool will override any contrary direction left in your will or trust.
In the event you do not use one of the first two options, Article 13-A sets forth a procedure for your executor to obtain a court order for digital access. Although the law does allow the custodian of the information to permit access in its sole discretion without a court order, it is unlikely such access would be granted because of liability concerns. The law requires the custodian of the information to comply with legitimate requests within sixty days.
Regardless of how your digital assets are accessed, your executor or trustee owes you a duty of care, loyalty, and confidentiality. As a result, any information obtained must be treated with appropriate respect. In addition to accessing your information, your executor or trustee has the authority to close your digital accounts upon the completion of their duties.
Given the changes that the internet has brought us, it is important to remember that with digital rights come digital responsibilities. Proper planning will help ensure that your loved ones can manage your digital assets after you pass. To successfully navigate this process, you should consider retaining the services of an experienced estate planning professional to ensure the decisions you make are the best ones for you.
Matthew J. Dorsey, Esq. is a Partner with O’Connell and Aronowitz, 1 Court Street, Saratoga Springs, NY. Over his twenty years of practice, he has focused in the areas of elder law, estate planning, and estate administration. Mr. Dorsey can be reached at (518)584-5205, This email address is being protected from spambots. You need JavaScript enabled to view it., and www.oalaw.com.
