Why Your Digital Assets Belong in Your Estate Plan

Estate litigation once revolved around real estate, brokerage accounts, and closely held businesses. Today, however, estates increasingly include another set of often overlooked assets that exist entirely online, such as cryptocurrency wallets, NFT collections, monetized social media accounts, and even password-protected email accounts. For many individuals, these assets represent not only significant financial value, but also irreplaceable personal information and online identities.  Yet they are often among the most overlooked components of an estate plan. These “digital assets” are increasingly central to modern wealth, and the failure to account for them in an estate plan may lead to costly litigation to resolve their disposition after death.

Under New York’s Article 13-A of the Estates, Powers and Trusts Law (“EPTL”), the state’s enactment of the Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”),[1] a “digital asset” is defined broadly as “an electronic record in which an individual has a right or interest.” EPTL § 13-A-1(i). But critically, RUFADAA governs access to digital assets, not ownership.

Accordingly, an effective estate plan must address two distinct questions: (1) who may access a decedent’s digital assets, and how; and (2) who is entitled to inherit them?  While the statutory framework addresses the former, it largely leaves the latter to traditional principles of estate planning and administration.

So, what happens to your digital assets after you pass away? If your estate plan doesn’t address them, their disposition may be left to a court—or, in the case of cryptocurrency, they could become permanently inaccessible. By planning ahead, clearly documenting your wishes, and providing your fiduciaries with both the legal authority and the practical information they need, you can help ensure your digital legacy is managed according to your intentions.

The Statutory Framework

New York’s EPTL Article 13-A creates a framework for fiduciaries, including executors, administrators, and personal representatives, to request disclosure of a decedent’s digital assets from a “custodian” (i.e., the platform or service provider that carries, maintains, or stores those assets). However, the statute and courts draw a critical distinction between non-content digital assets and the content of electronic communications.

Non-content information – such as data identifying the persons, dates, and addresses of communications, calendar entries, and contact lists – is generally available to a fiduciary upon presentation of a written request, death certificate, and letter of appointment. See EPTL § 13-A-3.2.

The content of electronic communications, however, requires a much higher threshold. Under EPTL § 13-A-3.1, a custodian must disclose content only if “a deceased user consented or a court directs disclosure[.]” EPTL § 13-A-3.1. Absent consent through an online tool or a will, trust, or other record, the fiduciary must obtain a court finding that disclosure is “reasonably necessary for administration of the estate.” EPTL § 13-A-3.1(e)(3)(D).

Importantly, the statute provides a hierarchy for user direction. A user may direct disclosure through an “online tool” offered by a custodian (such as Google’s Inactive Account Manager or Apple’s Legacy Contact). Importantly, if that tool allows the user to modify or delete the direction at any time, it overrides a contrary direction in a will or trust. EPTL § 13-A-2.2(a). If no online tool is used, a will, trust, or power of attorney may allow or prohibit disclosure. EPTL § 13-A-2.2(b). Without any of these, the default rule is that only the catalogue ‒ not the content ‒ may be disclosed. See EPTL §§ 13-A-3.1, 13-A-3.2; Margaret Valentine Turano, Practice Commentary, McKinney’s EPTL § 13-A-2.2 (2017) (noting that “the default rule is that the service provider may disclose the user’s catalogue (but not the content) of digital communications and other non-communication digital assets”).

The Case Law: Limited Access Without Planning

The developing case law under Article 13-A demonstrates just how difficult it is for a fiduciary to access a decedent’s digital assets when the decedent has failed to leave clear directions.

In In re Estate of Serrano, 56 Misc. 3d 497 (Sur. Ct. N.Y. Cnty. 2017), a surviving spouse petitioned to access his deceased spouse’s Google email, contacts, and calendar to “be able to inform friends of his passing” and “close any unfinished business.” Id. at 498. Google refused without a court order. The court granted access only to the non-content contacts and calendar, finding that this was all that was “reasonably necessary for the administration of the estate.” Id. at 499. The court denied access to the email content without prejudice.

In Matter of Coleman, 63 Misc. 3d 609 (Sur. Ct. Westchester Cnty. 2019), the decedent passed unexpectedly in his sleep at age 24. Id. at 610. He died intestate, and his cause of death was listed as “undetermined.” Id. The decedent’s parents sought access to all of his digital assets through Apple, hoping to determine whether he had medical issues, identify potential legal claims, and marshal estate assets. The court found that the decedent “neither used an online tool to grant his fiduciary access to the content of his digital assets nor had a last will and testament or other document which controlled the disposition of the content of these assets.” Id. at 614. Because the decedent’s iPhone passcode was unknown and iCloud access would expose email content, photos, text messages, voicemail, and browsing history, the court held that the petitioners had “not amply demonstrated, at this juncture, the need to access the content of [the decedent’s] digital assets for the administration of his estate” and limited them to non-content information only. Id. at 614–15.

These cases underscore a critical point: without advance planning, fiduciaries face significant obstacles in obtaining access to a decedent’s digital assets ‒ even when their motives are deeply personal or practically necessary. Courts have consistently limited access to non-content information unless the fiduciary can demonstrate that content access is “reasonably necessary” for estate administration, a burden that is difficult to meet in practice.

Notably, despite the rapid growth of cryptocurrency ownership and NFT collections, there are no reported New York or New Jersey decisions, and very few cases at all nationwide, addressing who owns a decedent’s blockchain-based assets or resolving competing inheritance claims to cryptocurrency or NFTs.  Instead, the current body of law focuses almost exclusively on whether a fiduciary may obtain access to digital accounts maintained by custodians such as Apple or Google.  This distinction is significant because many blockchain assets are self-custodied rather than maintained by a third-party custodian.  If a decedent’s private keys or seed phrase cannot be located, an executor may have the legal authority to “administer” the assets, but no practical ability to actually access them and utilize them.  The developing case law therefore highlights an important gap between traditional estate administration principles and the realities of decentralized digital property.

Takeaway: Plan for Ownership, Not Just Access

While RUFADAA may provide a pathway to access a decedent’s digital assets, obtaining such access remains a significant undertaking – and even then, the statute does not address ownership. A fiduciary may eventually obtain a decedent’s email catalogue or contact list, but questions about who owns the decedent’s cryptocurrency, who has the right to monetize a social media account, or who inherits an NFT collection remain unresolved by these statutes.

As digital assets continue to become a larger component of personal wealth, these issues are likely to become increasingly common in Surrogate’s Courts nationwide.  Until the courts begin to actually address these questions, careful estate planning remains the best, and perhaps only, way to avoid uncertainty and expensive, protracted litigation in a surprisingly uncharted territory.

For these reasons, individuals who wish to ensure their loved ones can access and inherit their digital accounts and communications – and avoid costly litigation – must take proactive steps during their lifetimes to authorize such access and provide for the disposition of their digital assets. This means:

(a) using available online tools offered by custodians – such as Google’s Inactive Account Manager or Apple’s Legacy Contact – to designate who should receive access;

(b) working with estate planning counsel to include specific provisions in wills, trusts, and powers of attorney that expressly address both access to and disposition of digital assets; and

(c) keeping a secure but accessible record of account information, passwords, wallet information, private keys (stored securely), and ensuring that a trusted person or fiduciary knows how to locate those materials.

Digital assets are now an integral part of many estates, yet they are often overlooked in the planning process. Working with experienced estate planning counsel can help ensure your digital assets are properly identified, protected, and incorporated into a comprehensive estate plan, giving your loved ones clear guidance and helping to avoid unnecessary legal and practical challenges.

[1] Cole Schotz published a blog post about the passage of New Jersey’s version of the Uniform Fiduciary Access to Digital Assets Act in 2017, which can be accessed here: [New Jersey Enacts Uniform Fiduciary Access to Digital Assets Act | Cole Schotz].