Articles

More and more of our personal and financial lives exist online. Photographs, social media accounts, email, online banking, cryptocurrency, business websites, and loyalty rewards are all part of what estate planners now call digital assets. These assets can have real financial or sentimental value, but without planning, families and fiduciaries may face major obstacles in accessing or managing them after death or incapacity.

What Are Digital Assets?

Digital assets include:

• Personal property – photos, videos, emails, playlists, and stored documents.
• Social media accounts – Facebook, Instagram, LinkedIn, X (formerly Twitter), and others.
• Financial accounts – online banking, PayPal, Venmo, Amazon, and eBay.
• Business-related accounts – client records, e-commerce stores, domain names, and blogs.
• Loyalty and reward programs – airline miles, hotel points, credit card rewards.
• Cryptocurrency and NFTs – Bitcoin, Ethereum, and other blockchain-based assets.

These assets can be easy to overlook, but they must be planned for just like bank accounts, retirement accounts, and real estate.

Why Digital Assets Matter in Estate Planning

Digital assets are important because they carry both emotional and financial value. Planning ahead ensures:

• Preservation of value – safeguarding cryptocurrency, online businesses, and accounts with monetary worth.
• Continuity for loved ones – providing access to photos, emails, and accounts for closure.
• Fraud prevention – reducing the risk of identity theft or unauthorized use of accounts.
• Efficient administration – enabling fiduciaries to act quickly and securely.

New York State’s Legal Framework for Digital Assets

New York addresses fiduciary access to digital assets under the Estates, Powers and Trusts Law (EPTL) Article 13-A (§ 13–A–1.1 to § 13–A–5.2). Enacted in 2016, this framework is modeled on the national Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) but is specific to New York.

Article 13-A is broken into five parts:

Part 1 — The Basics

• Defines key terms such as “digital asset,” “custodian,” and “online tool.”
• Establishes that fiduciaries (executors, administrators, guardians, trustees, and agents under powers of attorney) may exercise authority over digital assets in line with their duties.

Part 2 — When and How Access Is Granted

• Provides rules for custodians (like Google, Facebook, PayPal) to disclose digital assets to fiduciaries.
• Requires custodians to comply with disclosure requests if proper legal authority is shown.
• Distinguishes between content of communications (such as the body of emails) and catalogue or records of communications (sender, recipient, dates), with stricter requirements for disclosure of content.

Part 3 — Fiduciary Rights to Digital Assets

• Outlines how different fiduciaries may access digital assets:
• Personal representatives (executors/administrators) for estates.
• Trustees for assets held in trust.
• Agents acting under powers of attorney.
• Guardians for incapacitated individuals.
• Establishes procedures for making disclosure requests, such as providing certified court documents and proof of authority.

Part 4 — Timelines and Obligations

• Requires custodians to respond to fiduciary requests within 60 days.
• Permits custodians to request additional documentation to verify authority.
• Allows custodians to assess reasonable administrative charges for producing digital assets.

Part 5 — Duties of Care, Loyalty, and Privacy

• Fiduciaries who manage digital assets are held to traditional duties of care, loyalty, and confidentiality.
• They must act in the best interest of the account holder, protect privacy, and comply with restrictions in the governing documents or law.

Practical Steps for Protecting Digital Assets

To take advantage of these protections and make administration smoother, individuals should:

• Create a digital asset inventory – list all accounts, assets, and logins (usernames, passwords, security questions).
• Securely store information – consider a password manager, encrypted file, or attorney-managed records.
• Update estate planning documents – wills, trusts, and powers of attorney should include specific language granting fiduciaries authority under EPTL Article 13-A.
• Use online tools – designate “legacy contacts” or digital heirs where offered by service providers (e.g., Google, Facebook).
• Consider trust planning – cryptocurrency or high-value online businesses may be best held in a revocable living trust to ensure privacy and streamlined management.

Protecting Your Legacy, Online and Off

Digital assets are now a permanent part of modern estates. By incorporating them into estate planning, individuals can protect their property, reduce burdens on loved ones, and ensure their online legacy is managed according to their wishes.

If you would like to schedule a consultation to discuss creating or updating your estate planning, please contact our estate planning attorneys: Daniel S. Williford at 585-512-3511 or dwilliford@mccmlaw.com;  Spencer C. Malone at 585-512-3550 or smalone@mccmlaw.com; or Michael F. McConville at 585-512-3517 or mmconville@mccmlaw.com.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full-service law firm based in Rochester, New York, providing high-quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact us at 585.546.2500.