Digital Estate Planning in New York: A Step-by-Step Guide Under EPTL Article 13-A

By Albert Goodwin, Esq. — New York estate, probate, and trust attorney. Law Offices of Albert Goodwin, with offices in Manhattan, Brooklyn, and Queens. Last updated: June 2024.

Digital estate planning is the process of arranging who may access, manage, and dispose of your electronic records and online accounts after your death or incapacity. In New York, this is not just a matter of good organization — it is governed by a specific statute: Estate, Powers and Trusts Law (EPTL) Article 13-A, the “Administration of Digital Assets”, which took effect in 2016. Article 13-A is New York’s adoption of the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA).

Most generic guides tell you to write your passwords on a USB drive and “reference” your wishes in your will. That advice is incomplete and, in New York, potentially misleading. Whether your executor can actually obtain the contents of your Gmail, Facebook, or cryptocurrency exchange account is controlled by EPTL 13-A and the custodian’s terms of service — not by whether your fiduciary happens to know your password. Sharing a password may even violate the custodian’s contract and federal computer-access laws. This guide explains the New York legal framework and how to plan correctly.

What counts as a “digital asset” under New York law

EPTL 13-A.1 defines a digital asset as “an electronic record in which an individual has a right or interest,” but it expressly excludes the underlying asset or liability unless that asset is itself an electronic record. Practically, this includes:

• Communications — email accounts, text messages, and the contents of those communications (treated with special protection under the statute);
• Social media and content accounts — Facebook, Instagram, X/Twitter, LinkedIn, YouTube channels, blogs;
• Cloud storage and files — Google Drive, Dropbox, iCloud, photo libraries;
• Financial and commercial accounts — online banking, brokerage, PayPal, Venmo, loyalty and frequent-flyer programs;
• Digital property of independent value — domain names, monetized websites, and cryptocurrency or other blockchain assets. (Because crypto raises distinct custody and key-management issues, see our New York Bitcoin and cryptocurrency lawyer page.)

Importantly, the law distinguishes the digital asset (the account/record) from the device on which it is stored and from the money in a bank account. EPTL 13-A governs a fiduciary’s right to access the records; the underlying funds pass through ordinary probate or non-probate transfer.

New York’s three-tier access framework

The single most important concept under EPTL 13-A is the order of priority that determines whether and how a fiduciary gets access. The statute (see EPTL 13-A.2) establishes a tiered hierarchy:

1. The custodian’s online tool. If the company (Google, Facebook, Apple, etc.) offers an “online tool” — a setting that lets you name who can access your account after death — and you use it, your direction overrides contrary instructions in your will. Examples include Google’s Inactive Account Manager and Facebook’s Legacy Contact.
2. Your estate-planning documents. If you did not use an online tool, or the custodian offers none, your direction in a will, trust, or power of attorney controls. This is where careful drafting matters — the document can grant or restrict access to the content of communications.
3. The custodian’s terms-of-service agreement. If you addressed access in neither an online tool nor your estate documents, the terms of service govern by default — which often means no access, or a slow, contested request process.

This is precisely why “leave a USB in the safe” is not a plan. A password does not give your executor a legal right to access the account; under EPTL 13-A and federal law, the custodian’s obligation to disclose is triggered by the authorization mechanisms above, not by possession of credentials.

Content of communications vs. catalogue of records

New York law treats the content of your private communications (the actual text of your emails and messages) more protectively than the catalogue of records (a log showing the addresses and dates of messages). Under EPTL 13-A, a custodian may disclose the content of electronic communications to an executor or administrator only where the deceased user consented to disclosure — through an online tool or an explicit grant in the will, trust, or power of attorney — and the fiduciary supplies the required documentation. A fiduciary may more readily obtain the catalogue and non-content records.

Drafting takeaway: a well-drafted New York will should affirmatively state whether your executor may access the content of your electronic communications, using language that tracks the statute. Silence is not neutral — it can default you into the no-access tier.

Sample New York digital-asset clause concepts

An effective digital-asset provision in a New York will or trust typically:

• Grants the executor or trustee authority “to access, handle, distribute, and dispose of my digital assets,” expressly referencing EPTL Article 13-A;
• States specifically whether the fiduciary may access the content of electronic communications (the statute requires this to be explicit);
• Identifies whether catalogue-only access is intended for certain accounts;
• Coordinates with a statutory power of attorney so that a named agent can manage accounts during incapacity, not just after death. New York’s revised power-of-attorney form (effective June 2021) should be drafted to address digital assets.

We do not publish boilerplate fill-in language here because digital-asset clauses must be coordinated with your custodian online-tool choices and the rest of your plan to be enforceable. For broader strategies, see our pages on advanced New York estate planning techniques and the benefits of a living trust.

How digital assets move through New York Surrogate’s Court

When a New York resident dies, the will is typically admitted to probate in the Surrogate’s Court of the county where the decedent was domiciled (for example, New York County for Manhattan, Kings County for Brooklyn, Queens County, etc.). The court issues letters testamentary (if there is a will) or letters of administration (if there is none). Those letters are the credential a fiduciary presents to a custodian under EPTL 13-A, often together with a certified death certificate and a copy of the relevant will provision.

Custodians may require the fiduciary to submit a request, identify the account, and provide proof of authority before disclosing records. Disputes over access — or over a fiduciary’s handling of valuable digital property like a domain or crypto holdings — can be litigated in Surrogate’s Court. Because probate timelines vary, planning to avoid probate for certain assets may be worthwhile; see how to avoid probate in New York.

Step-by-step: building a New York digital estate plan

1. Inventory your digital footprint. List email, social, cloud, financial, subscription, loyalty, domain, and crypto accounts, plus the devices they live on. Do not put passwords in your will, which becomes a public court record after probate.
2. Use custodian online tools first. Set Google Inactive Account Manager, Apple Legacy Contact, and Facebook Legacy Contact — these sit at the top of the EPTL 13-A hierarchy.
3. Decide each asset’s fate. Transfer, memorialize, sell, or close. A monetized website or domain may have real estate-tax value; a social account may be memorialized.
4. Authorize access in your documents. Have your attorney add EPTL 13-A–compliant language to your will, trust, and power of attorney, expressly addressing content of communications.
5. Store credentials securely — separately from your will. A reputable password manager or a secured record is reasonable, but treat it as a convenience, not the legal authorization. The legal right flows from the documents and online tools, not the password file. Use two-factor authentication where available.
6. Choose your fiduciary thoughtfully. “Digital executor” is not a separate office in New York; your executor (or a co-fiduciary with defined powers) handles digital assets. Pick someone trustworthy and reasonably tech-capable.
7. Review periodically. Accounts, devices, and custodian policies change. Revisit your plan when you open major accounts, acquire crypto, or move.

Common mistakes New Yorkers make

• Relying on a password list alone. It does not create the legal right to access under EPTL 13-A and may breach the custodian’s terms.
• Putting credentials in the will. The probated will is public; never include passwords.
• Failing to address “content” expressly. Generic “handle my digital assets” language may not unlock email content under New York’s consent requirement.
• Ignoring incapacity. Plan for access during life through a properly drafted power of attorney, not only at death.
• Overlooking crypto custody. Without the private keys and clear fiduciary authority, crypto can be permanently lost.

Frequently asked questions about digital estate planning in New York

Can my executor access my email in New York?

Yes, but only if you authorized disclosure of the content of your communications — through a custodian online tool or an explicit grant in your will, trust, or power of attorney — as required by EPTL Article 13-A. Otherwise, the provider may release only limited non-content records, or nothing.

Does New York law override Facebook’s or Google’s terms of service?

Partly. Under EPTL 13-A’s three-tier framework, a direction you give through a custodian’s own online tool (like Facebook Legacy Contact or Google Inactive Account Manager) takes priority over both your will and the general terms of service. If you don’t use the tool, your will/trust/POA controls; only if you address it nowhere do the terms of service govern by default.

Do I need a separate “digital executor” in New York?

No. “Digital executor” is not a legal title in New York. Your regular executor or trustee handles digital assets, though your documents can grant a specific person tailored powers over them.

What happens to my cryptocurrency if I die without a plan?

Crypto held in self-custody can be irretrievable without the private keys, and an exchange account may be frozen pending fiduciary authorization. EPTL 13-A access plus secure key arrangements are both needed. See our New York cryptocurrency lawyer page.

Is my digital-asset information public if it goes through probate?

The will itself becomes a public Surrogate’s Court record, which is why passwords must never be in it. A trust can keep many directions private; see our overview of living trusts.

Can my agent under a power of attorney manage my accounts while I’m alive but incapacitated?

Yes, if your power of attorney is drafted to authorize access to digital assets under EPTL 13-A. This is why coordinating your advance directives and power of attorney with your digital plan matters.

Speak with a New York estate planning attorney

Digital estate planning in New York is a legal exercise, not just a list of logins. Getting EPTL Article 13-A authorization right — and coordinating it with your will, trust, power of attorney, and custodian online tools — is what actually empowers your loved ones to act. At the Law Offices of Albert Goodwin, we draft enforceable digital-asset provisions and assist fiduciaries with Surrogate’s Court matters in Manhattan, Brooklyn, and Queens.

Call us at 212-233-1233 or email [email protected] to discuss your plan.

This article is for general information about New York law and is not legal advice. Reading it does not create an attorney-client relationship. Statutes and custodian policies change; consult a New York attorney about your specific situation.