Administering Digital Assets

January 27, 2020

In 2016, the Legislature enacted Article 13-A of the Estates, Powers and Trusts Law, New York’s digital assets legislation. Article 13-A addresses the permissible scope of access to digital assets, and the duties that apply to such assets.

Article 13-A defines a “digital asset” as “an electronic record in which an individual has a right or interest.” EPTL §13-A-1(i). The definition of “digital asset” excludes “an underlying asset or liability unless the asset or liability is itself an electronic record.” Id. Thus, where an electronic record represents “cash, stocks or bonds,” it is not subject to Article 13-A. Jill C. Beier, “Probate v. Privacy: The Technology Battle After Death,” 90 N.Y. St. B. J. 24 (2018). Conversely, where an electronic record “represents another electronic record such as emails, photos or documents stored in the cloud, virtual property in gaming sites, blogs, domain names, [and] online music and books,” Article 13-A applies. Id. Although not yet addressed by a court, cryptocurrencies likely qualify as digital assets under Article 13-A.

Reprinted with permission from New York Law Journal, Monday, January 27, 2020, Vol 263 – No. 17.

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