MODERN ESTATE PLANNING
Social Media / Online Business / Monetized Accounts / IP and more.
Digital Asset & Legacy Planning
Our lives are increasingly connected to digital accounts, online records, social media, and cloud-based services. Family photographs, personal communications, financial information, and even valuable property may exist entirely online. Yet traditional estate plans do not always fully address what should happen to these assets when someone dies or becomes incapacitated.
At Eldon Trust & Estate, we help individuals and families throughout Buffalo, Clarence, and Western New York address digital assets as part of comprehensive estate planning. Through appropriate legal directives and coordinated account planning, individuals can establish preferences concerning access to digital information, preservation of important memories, and protection of personal privacy.
What Is Digital Asset and Legacy Planning?
Digital asset and legacy planning is the process of preparing for the management, disclosure, preservation, or disposition of your digital property and online information if you become incapacitated or pass away. Unlike traditional property, digital assets may be controlled by online service providers, governed by account agreements, or protected by laws restricting disclosure of private communications. For this reason, simply naming an executor in your will may not provide that individual with unrestricted access to your online accounts. A comprehensive digital estate plan considers both the legal authority granted to a fiduciary and the practical procedures required by individual service providers. Digital asset planning may be incorporated into your will, revocable living trust, power of attorney, and other estate planning documents, depending on your circumstances.
What Happens to Your Digital Assets When You Die?
When an individual dies, digital accounts do not necessarily become accessible to their surviving family members.
A spouse or child may know that important photographs are stored in a cloud account but lack permission to retrieve them.
An executor may need financial records contained in an email account but be unable to obtain the contents of private communications without appropriate legal authority.
Some services offer procedures for requesting access, memorializing accounts, or arranging for information to be shared with designated individuals. Others impose significant restrictions.
Without advance planning, families may encounter delays, uncertainty, or permanent loss of access to certain information.
Digital legacy planning helps address these concerns before they become problem.
Which Digital Assets Should Be Included in Your Estate Plan?
Social Media Accounts and Online Profiles
Facebook, Instagram, and other social media accounts may contain years of photographs, messages, posts, and personal history.
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An individual may prefer that certain profiles remain memorialized, while others should be deleted after death.
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Digital planning can document these preferences and help individuals use available platform tools to designate appropriate contacts or request account disposition.
Family Photographs, Videos, and Cloud Storage
Digital photographs and videos often represent some of a family's most irreplaceable memories.
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Accounts such as Apple iCloud, Google Photos, and other cloud storage services may contain decades of images, documents, and personal files.
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Planning ahead can help identify where these materials are stored and establish authorized procedures for requesting their preservation or disclosure.
Email Accounts and Private Communications
Email accounts frequently contain important financial records, legal documents, personal correspondence, and account information.
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However, the contents of private electronic communications receive special legal protection.
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New York law permits individuals to provide certain directions concerning disclosure of electronic communications, including through appropriate estate planning documents.
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These directions can be particularly important when determining whether an executor or other fiduciary may request access to private account information.
Financial Accounts, Cryptocurrency, and Digital Property
Digital asset planning may also involve online financial records, electronic payment accounts, domain names, cryptocurrency, and other property maintained or accessed electronically.
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Some assets have substantial financial value, while others provide access to information necessary for administering an estate.
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These assets can present unique questions regarding ownership, transferability, access credentials, and security.
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Digital asset provisions should be coordinated with broader estate planning and, when appropriate, business succession arrangements.
Online Businesses and Intellectual Property
Websites, domain registrations, monetized digital content, and other online business interests may continue to have economic value after death.
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Owners should consider whether these interests can be transferred, who should manage them, and how authorized individuals will locate the information necessary to continue or wind down operations.
Can You Decide Who Has Access to Your Digital Accounts After Death?
Yes. New York law provides mechanisms for individuals to give directions concerning disclosure of certain digital assets.
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Under New York Estates, Powers and Trusts Law § 13-A-2.2, individuals may use an eligible online tool or provide directions in a will, trust, power of attorney, or other record to allow or prohibit disclosure of digital assets.
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Importantly, when a qualifying online tool allows the user to modify or delete directions at all times, those directions generally take precedence over conflicting instructions in estate planning documents.
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Digital asset planning should therefore consider both formal legal documents and the legacy or account-management tools offered by individual providers.
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Can You Choose Which Information Remains Private?
Estate planning does not need to involve providing unrestricted access to every aspect of your digital life.
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You may wish to authorize disclosure of important financial records while restricting access to certain personal communications.
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You may also want photographs preserved for family members without giving them access to unrelated private information.
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New York's digital asset law permits individuals to provide directions allowing or prohibiting certain disclosures, subject to applicable legal requirements.
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Thoughtful planning can help express these preferences and identify appropriate limits on fiduciary access.
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Does an Executor Automatically Have Access to Digital Accounts in New York?
No. Appointment as executor does not automatically grant unrestricted access to every digital account, private email, or electronic message.
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New York's digital asset law distinguishes between the content of electronic communications and certain other digital assets or account records.
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Under EPTL § 13-A-3.1, disclosure of the contents of a deceased user's electronic communications generally requires the user's consent or an appropriate court direction, together with specified documentation.
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Different requirements apply to disclosure of other digital assets under EPTL § 13-A-3.2.
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Even where disclosure is authorized, a fiduciary may be required to submit a formal request, proof of death, evidence of appointment, or other supporting information.
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Properly drafted estate planning documents can help establish consent and clarify the intended scope of fiduciary authority.
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Should Digital Asset Authority Be Included in a Power of Attorney?
Yes. Digital asset planning is important during incapacity as well as after death.
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An individual who becomes unable to manage personal affairs may still have online financial accounts, electronic records, digital subscriptions, and other important information requiring attention.
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A properly drafted power of attorney can address an agent's authority concerning digital assets.
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Under EPTL § 13-A-3.3, access to the content of electronic communications by an agent generally requires express authority in the power of attorney, subject to statutory conditions.
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Coordinating these provisions with other estate planning documents can help reduce uncertainty regarding an agent's responsibilities.
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How Can You Prepare Your Digital Legacy?
Digital legacy planning generally involves several coordinated decisions.
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1. Identify Important Digital Assets
Determine which accounts contain valuable property, necessary records, or meaningful personal information.
This may include social media profiles, online financial accounts, cloud storage, cryptocurrency, and business-related digital property.
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2. Decide What Should Be Preserved or Removed
Consider whether social media profiles should be memorialized, photographs preserved, or certain accounts closed.
Individuals may have different preferences depending on the account and the information it contains.
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3. Identify Appropriate Fiduciaries and Contacts
Consider who should have authority to request information and whether existing platform-specific legacy contact features should be used.
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The person responsible for administering an estate may not necessarily be the person you would prefer to handle family photographs or online memorials.
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4. Establish Appropriate Legal Directives
Review whether your will, trust, power of attorney, or other records adequately address the disclosure of digital assets and electronic communications.
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These instructions should be coordinated with applicable law and the online tools provided by individual account providers.
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5. Maintain Secure Access Information
Consider maintaining an organized and secure record of important accounts and other access-related information outside your publicly filed estate planning documents.
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Passwords and recovery information should be protected carefully.
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Legal authorization should not be confused with permission to access an account using another person's credentials.
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How Does Eldon Help With Digital Asset & Legacy Planning?
At Eldon Trust & Estate, we view digital asset planning as part of a broader estate planning strategy.
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Our attorneys can help clients evaluate how digital property, account information, private communications, and online records should be addressed in appropriate legal documents.
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Depending on the client's circumstances, this may include:
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Reviewing fiduciary authority concerning digital assets and electronic communications.
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Discussing permissible disclosure directives and privacy preferences.
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Coordinating digital asset provisions with existing wills, trusts, and powers of attorney.
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Identifying account-specific issues that may require additional planning.
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Helping clients understand the relationship between New York law and platform-specific account management tools.
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Our objective is to help clients make informed decisions about their digital assets while recognizing the legal limitations and practical procedures involved in account access.
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Protect Your Digital Assets and Preserve What Matters Most
Your estate plan should reflect the realities of your life today.
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For many individuals, that includes not only real estate, financial property, and personal belongings, but also photographs, online information, digital accounts, and private communications.
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Planning for these assets can help clarify your wishes, protect your privacy, and provide loved ones with a better understanding of how your digital legacy should be handled.
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Eldon Trust & Estate assists individuals and families in Buffalo, Clarence, and throughout Western New York with comprehensive estate planning tailored to their circumstances.
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Schedule an Estate Planning Consultation
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Sources & Legal References
New York State Law
New York Estates, Powers and Trusts Law, Article 13-A — Administration of Digital Assets
https://www.nysenate.gov/legislation/laws/EPT/A13-A
EPTL § 13-A-2.2 — User Direction for Disclosure of Digital Assets
https://www.nysenate.gov/legislation/laws/EPT/13-A-2.2
EPTL § 13-A-3.1 — Disclosure of Content of Electronic Communications of Deceased User
https://www.nysenate.gov/legislation/laws/EPT/13-A-3.1
EPTL § 13-A-3.2 — Disclosure of Other Digital Assets of Deceased User
https://www.nysenate.gov/legislation/laws/EPT/13-A-3.2
EPTL § 13-A-3.3 — Disclosure of Content of Electronic Communications of Principal
https://www.nysenate.gov/legislation/laws/EPT/13-A-3.3
EPTL § 13-A-4.1 — Fiduciary Duty and Authority
https://www.nysenate.gov/legislation/laws/EPT/13-A-4.1
Official Account Provider Resources
Apple Support — How to Add a Legacy Contact for Your Apple Account
https://support.apple.com/en-us/102631
Google Account Help — About Inactive Account Manager
https://support.google.com/accounts/answer/3036546
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This information is provided for general educational purposes and does not constitute legal advice. Access to digital assets depends on applicable law, provider policies, account agreements, and individual circumstances.
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