The Path to Disclosure of a Decedent’s Digital Assets: Settled or Evolving?
February 26, 2020
Since the last post to this blog on the evolving issue of access to a decedent’s digital assets (Death and Digital Content: Protecting Digital Assets After the Death of a User, March 29, 2019), New York Courts have issued a series of decisions that generally followed the leads of the Serrano and White decisions (as discussed in An Update on a Fiduciary’s Access to the Digital Records of a Decedent, December 19, 2017). This post provides (1) a summary of the legislative intent behind Article 13-A of the EPTL (“Administration of Digital Assets”), (2) a survey of the recent published decisions, (3) tips on applying for disclosure of a decedent’s digital assets, and (4) a discussion of the definition of “electronic communication.”
Article 13-A of the EPTL became effective on September 29, 2016. This law serves two primary purposes: (1) to enable a fiduciary to access and administer a decedent’s digital assets while respecting the decedent’s privacy; and (2) to “restore control of the disposition of digital assets back to the individual and [remove] such power from the service provider.” In short, the law is not intended to let a fiduciary simply “step into the shoes” of a deceased user and manage the decedent’s digital assets in the same way as tangibles (e.g., photos, letters). The law requires affirmative direction by an account holder to authorize access to digital assets in the event of death or incapacity. Without express authorization by the user, disclosure is allowed if directed by a court. In the recent cases where a deceased user provided no express authorization for disclosure, to protect a decedent’s privacy by limiting access to non-content information of digital assets has been the established theme.
Recent Published Decisions
In Matter of Coleman (63 Misc 3d 609 [Sur Ct, Westchester County 2019]), the parents of a decedent who died unexpectedly in his sleep at the age of 24 petitioned for a court order directing Apple to disclose data stored in decedent’s iCloud account for the purposes of marshaling decedent’s digital assets, identifying decedent’s medical issues, and determining whether any legal action should be commenced. Apple was cited but defaulted. Finding that the petitioners had not “amply demonstrated” the need to access the content of decedent’s digital assets for estate administration, Surrogate Sall allowed disclosure of non-content digital assets in favor of protecting decedent’s interest in not consenting to disclosure of the content, without prejudice to a new application establishing that disclosure of content information would be necessary.
Similarly, in Matter of Murray (NYLJ, Oct. 21, 2019, at 30 [Sur Ct, Suffolk County]), Surrogate Whelan denied the application for access to content information of electronic communications stored in decedent’s iPhone and associated with decedent’s Apple ID. Petitioner alleged that the information contained in the data was reasonably necessary for the administration of the estate and would particularly “assist in determining the source of drugs obtained by [decedent].” Apple agreed to “transfer ownership of the Apple ID to petitioner” only if a court order specifies, among others, that petitioner is “the ‘agent’ of the decedent and her authorization constitutes ‘lawful consent.’” The Court acknowledged the “delicate balance between a decedent’s right to privacy and a fiduciary’s duty to marshal estate assets,” as emphasized by former Surrogate Cyzgier in Matter of White (NYLJ, Oct, 3, 2017, at 25, col 1 [Sur Ct, Suffolk County]). Finding a lack of proof to substantiate the nexus between the content information sought and administration of the estate, the Court only allowed disclosure of a catalogue of electronic communication (i.e., non-content information).
Most recently, Surrogate Sall has denied an Administrator’s SCPA 2103 petition for access to content information of a decedent’s Google e-mail and directed disclosure of a catalogue only (Matter of Paragon, NYLJ, Dec. 20, 2019, at 21, col 2 [Sur Ct, Westchester County]). Disclosure of e-mail content was sought to ascertain decedent’s intent regarding disposition of certain real property. Even if disclosure of contents of e-mails could be reasonably necessary to estate administration, the Court found that granting unfettered access to decedent’s e-mail (which was also used for decedent’s law practice) “would more likely than not” allow access to communication protected by attorney-client privilege.
Tips on Applying for a Court Order Authorizing Access
The published decisions indicate that courts tend to be sympathetic to a fiduciary seeking access to a decedent’s digital assets, which is often precipitated by an unexpected, tragic loss. Nevertheless, because custodians usually require a court order absent an express authorization by a decedent, New York courts are restrained to allow access only to: (1) non-content information of electronic communications in the form of a catalogue, and (2) digital assets that are not electronic communications, e.g., photos stored in iCloud (Matter of Swezey, NYLJ, Jan. 17, 2019, at 23, col 3 [Sur Ct, NY County]), and information contained in Google Calendar and Contacts (Matter of Serrano, 56 Misc 3d 497 [Sur Ct, NY County 2017]).
The decisions indicate two typical routes to apply for disclosure of digital assets: (1) a small estate proceeding (SCPA Article 13), or (2) an SCPA 2103 proceeding. In a small estate proceeding, the court usually issues a certificate under SCPA 1304(5) directing a non-party custodian to disclose certain digital assets, whereas in a discovery proceeding, process is issued to the custodian. Although it might seem innocuous to dispense with process on custodians who tend to default even when they are served with process, a procedural conundrum might emerge in a small estate proceeding when a non-party custodian later appears to oppose the order.
In applying for a court order directing disclosure of a decedent’s digital assets, a fiduciary must provide sufficient information to assist the court (Matter of Bass, NYLJ, Jun. 25, 2019, at 22, col 4 [Sur Ct, NY County 2019] [dismissing the application without prejudice after petitioner failed to provide the required information]). “Sufficient information” includes the following:
- Specific information needed and where it is stored;
- The reason why the information sought is reasonably necessary for the administration of decedent’s estate (i.e., the nexus);
- Basis for petitioner’s knowledge of the accounts associated with the decedent;
- Custodian’s specific requirement for disclosure, e.g., proposed court order; and
- Information regarding whether the decedent provided any direction for disclosure or otherwise consented to such, and whether the decedent prohibited disclosure. (see Matter of Gager, NYLJ, Jun. 28, 2019, at 27, col 1 [Sur Ct, NY County 2019]):
In light of the popularity of digitalized assets and paperless records, the need for a fiduciary’s access to a decedent’s digital assets will only increase. To facilitate a fiduciary’s access, the law should burden neither the custodians nor the courts. Before a standard procedure can be implemented to address the particular needs for ordered disclosure, courts will entertain applications for access on a case-by-case basis. An application that provides the above information tailored to the specific needs will hopefully streamline the process.
Stones Left Unturned—What is “Electronic Communication”?
The stricter requirement for disclosure of content information of electronic communications under Article 13-A of the EPTL can be ascribed to its roots in the federal law. The definition of “electronic communication” derives from the Wiretap Act (18 USC §§ 2510-22) as Title I of the Electronic Communications Privacy Act of 1986 (“ECPA”). Recognizing that “law must advance with the technology to ensure the continued vitality of the fourth amendment” 33 years ago (S Rep 99-541, 99th Congr, 2nd Sess, reprinted in 1986 US Code Cong & Admin News at 3559), Congress enacted the ECPA to amend the federal wiretap law of 1968 by extending to “electronic communications” the privacy protection against unauthorized interception (id. at 3555).
The Stored Communications Act (“SCA”), which is Title II of the ECPA, sets forth internet users’ statutory privacy rights against government surveillance by limiting the government’s ability to compel service providers to disclose users’ information and by restricting service providers from voluntarily disclosing such information to the government (18 USC §§ 2701-12). Specifically, it prohibits custodians from disclosing (1) contents of a communication in their electronic storage to anyone, and (2) non-content information to any governmental entities (18 USC § 2702 [a]). Voluntary disclosure of content information is permissible “with the lawful consent of the originator or an address or intended recipient of such communication” (18 USC § 2702 [a]). In the context of disclosing a decedent’s digital assets to a fiduciary, the custodians are concerned about violating the federal law. Rather than acknowledging a fiduciary’s consent as “lawful consent” under the federal statute (id.; see Ajemian v Yahoo!, Inc., 478 Mass. 169  [finding that fiduciary could “lawfully consent” for disclosure of contents of decedent’s email]), the RUFADAA and New York law require proof of a decedent’s consent or a court order for disclosing content information of electronic communications
Absent congressional intent to preempt probate law in the ECPA (see Ajemian v Yahoo!, Inc., 478 Mass. at 178), the definition of “electronic communication” as adopted from the Wiretap Act could interfere with a fiduciary’s estate administration under Article 13-A of the EPTL. For example, when a decedent shared Google calendar entries or photos stored in iCloud with another individual, was there transfer of information that should prohibit disclosure of such calendar entries and photos under the SCA? The interpretation of a fiduciary’s access to a decedent’s digital assets is truly a work in progress.
 NYSBA memorandum in support of the proposed legislation (the “NYSBA Memo”), page 1.
 New York State Assembly Memorandum in Support of Legislation A 9910A (the “Assembly Memo”).
 The NY law was modelled after the Uniform Law Commission’s Revised Uniform Fiduciary Access to Digital Assets Act (2015) (the “RUFADAA”) which was endorsed by major service providers like Facebook and Google. As of January 26, 2020, the RUFADAA has been adopted and enacted by 44 states and introduced in four other states and District of Columbia (Uniform Law Commission).