Burner Prudenti Law: Digital Assets and Estates

Q: I am the executor of a decedent’s estate with digital assets. How do I manage these assets effectively?

A: When you think of what assets might constitute your “estate,” you probably think of physical assets, like your house and your car, as well as financial assets, like your savings account or your mutual funds. But in a landscape that is increasingly shifting “online,” non-tangible and virtual assets have become a meaningful and integral part of everyday life.

From social media accounts and photographs saved in the Cloud, to online bank accounts and cryptocurrencies, these digital assets can hold both financial and sentimental value. If you are the executor of an estate, you should not be quick to overlook these assets.

Unfortunately, as an executor, it can be particularly difficult to investigate and access online assets, especially if you do not have access to the decedent’s devices like a phone or a laptop computer. An executor should carefully review the deceased person’s records for passwords, login credentials, and other proofs of online activity. If you have access to the deceased person’s social media accounts or online platforms, you should take steps to shutter these accounts to prevent unwanted activity from bad actors. Where possible, you should also be proactive in cancelling accounts or subscriptions that are no longer needed. This reduces the risk of unauthorized access from a third party down the line.

Without the proper credentials to access these accounts, however, it can be challenging to coordinate with service providers to gain authorization, even if you have proof that you are the Executor. This is because online platforms, like Google or Apple, have an interest in protecting the privacy of their users in an effort to protect against fraud. To make matters more complicated, each platform operates based on its own distinct Terms of Service, and no two providers have a uniform procedure.

Thankfully, Article 13-A of the Estates Powers and Trusts Law dictates a procedure for disclosure of digital assets to fiduciaries. The fiduciary must provide the service provider with a written request for disclosure, a copy of the decedent’s death certificate, certified copies of the Letters Testamentary or Letters of Administration, and all known identifying information for the account. Fiduciaries also should provide an affidavit stating that this disclosure is reasonably necessary for administration of the estate. If the provider does not comply, the fiduciary can commence a discovery proceeding to obtain a Surrogate’s Court order directing the disclosure.

As fiduciary, you have the same duty of care, loyalty, and confidentiality in managing digital assets as you would with physical ones. If you are an executor and your loved one has online assets that you cannot access, an experienced estates attorney can help guide you through the process.

By Frank Oswald, Esq.

Frank Oswald, Esq. is an associate attorney at Burner Prudenti Law, P.C., focusing his practice on Trusts and Estates. Burner Prudenti Law, P.C. serves clients from New York City to the East End of Long Island, with offices located throughout the region.