Articles & Advisories Publication: New York State Bar Association, Trusts and Estates Law Section Newsletter

The Digital Footprint After Death: Who Wears the Shoes?

Written by:  Peter B. Skelos, Lesli P. Hiller and Robert M. Harper

Email, Facebook, LinkedIn, Twitter, Instagram, Snapchat, Tumbler, online banking, online shopping, and other forms of electronic communications, comprise our digital footprint. They are seemingly ubiquitous and omnipresent in the life of our business, social, and personal affairs. But, on death, who has the right of access to a decedent’s digital footprint? More importantly, what is the scope of that access? Can a fiduciary figuratively step into the decedent’s shoes and gain full access to the decedent’s digital assets and electronic communications?

The digital world has been hurtling through space at the speed of light. The law, however, until recently, has been moving like the Pony Express and is quite a few steps behind when it comes to addressing access to a decedent’s digital assets. This article addresses New York’s recently enacted digital asset legislation, Article 13-A of the Estates, Powers and Trusts Law (hereinafter “Article 13-A”), as well as the decision in Matter of Serrano, 56 Misc 3d 497 (Sur Ct, New York County, 2017) which appears to be the first reported case in New York to examine the nature and extent of a fiduciary’s access to the “digital assets” and “electronic communications” of a decedent. See generally EPTL § 13-A-1 for the statutory definitions of the quoted terms referenced in this article.

Reprinted with permission from:  Trusts and Estates Law Section Newsletter, Summer 2018, Vol. 51, No. 2, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.


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