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Did You Know That New York Executors Or Administrators May Have Access To Digital Assets

The administration of a New York estate requires that the decedent’s assets be identified and collected.  In most cases the marshaling of estate assets is not complicated.  An Executor or Administrator often collects funds from bank accounts, brokerage accounts, retirement accounts and life insurance.  Typically, there are forms to be completed and the asset is paid to the fiduciary.

However, today, many assets and the information regarding assets, along with a decedent’s affairs, only exists or is stored in a digital format.  Unlike traditional items belonging to a decedent that can be discovered by looking through a decedent’s papers or mail, these digital assets are only found in electronic form.  As a result, an estate representative is faced with the difficult task of discovering and then accessing this material.  It is even more daunting to obtain such information when pass-words are unknown and the custodian of the information, such as an internet company like Google, Facebook, Apple or other on-line services, maintain strict privacy policies.

Such was the problem in a Westchester Estate that was faced by parents when their 24 year old son died unexpectantly.  After the son’s death, without a Will, the parents were appointed as Administrators of his estate.  They attempted to obtain formation from Apple that was contained in their son’s iPhone.  Unfortunately, the parents did not have the passcode to access any of the data.  After contacting Apple, they were advised among other requirements, that a Court Order would be needed to obtain the information, some of which may have been stored in iCloud back-up.

The parents filed a proceeding with the Westchester County Surrogate’s Court to obtain the digital information.  Their application was reviewed by Westchester Surrogate Brandon Sall in a decision dated March 1, 2019, entitled In the Matter of Coleman.  In his decision, the Surrogate denied the parents’ request to obtain content information that was stored in the iCloud.  The Court did allow access to the non-content information which was in the form of calendar and contact lists.  The Court analyzed recent cases dealing with digital assets along with the provisions of Estates, Powers and Trusts Law section 13-A-3.2 entitled ”Disclosure of other digital assets of deceased user”.  Essentially, the Court observed that the statute only allowed access to private content information when a decedent authorized such access by an on-line tool or through a record disposing of such assets such as a Last Will.

As can be seen from reading Coleman, dealing with issues concerning digital assets and electronically stored information can be complex and difficult.  The Court’s analysis in the case was very thoughtful and attempted to balance the policies of a person’s privacy with the need for estate fiduciaries to obtain important information for estate settlement.

I have been representing clients in estate settlement from routine to very complex matters.  If you have a question or issue concerning an estate whether it is a probate, administration or other problem, call me now for a free review.

New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 30 years resolve issues relating to probate and estate settlement throughout New York State including Nassau County and the Bronx.   If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.

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