Digital Assets and Digital Legacy Planning

Digital Assets and Digital Legacy Planning in New York

Your email, photos, online bank accounts, and social media profiles are protected by passwords, privacy laws, and terms of service you clicked through years ago. If you die or become incapacitated, those protections do not automatically step aside for your family. Without the right planning, the people you trust may be locked out of accounts they need to pay your bills, settle your estate, or simply save your family photos.

This page explains how New York law handles digital assets, what your estate plan should say, and how to get organized. At the bottom, you can download our free Digital Asset Inventory Worksheet.

The short version

What is a digital asset? Under New York law, any electronic record in which you have a right or interest.

Can my executor read my email? Only if you consented in your will, trust, or other record, or a court orders it. Without that, they may get only a list of who you corresponded with and when.

Can my power of attorney agent access my accounts? For the content of your emails and messages, only if your power of attorney expressly grants that authority.

What overrides what? A platform’s own legacy tool (where you name someone inside the account) can override your will. Your will or power of attorney can override the fine print in the terms of service.

What should I do now? Make an inventory, set up legacy tools where available, and make sure your documents include digital asset authority.

What Counts as a Digital Asset? More than most people expect. Common examples include:

Communications: email, text messages, messaging apps
Financial accounts: online-only banks, brokerage accounts, payment apps, PayPal and similar services
Photos, videos, and documents: cloud storage, photo libraries, files on your devices
Social media: personal profiles and pages
Business assets: domain names, websites, online stores, client lists, business email, and social media accounts
Rewards and credits: airline miles, hotel points, store credit (many programs restrict transfer at death, so check the program rules)
Cryptocurrency and other digital currency: held on an exchange or in your own wallet
Devices: phones, laptops, and tablets, which are often the key to everything else

Why Your Family Can Get Locked Out

Three things stand between your family and your digital life:

The device and the password. Even when your family has legal authority, they still need practical access. A locked phone with two-factor authentication can stop an executor cold.
The platform’s terms of service. Many accounts are non-transferable, and logging in as you may violate the account’s terms.
Privacy laws. Email and messaging providers are restricted in what they can disclose, so they need clear legal authority before they will release the content of your communications.

New York addressed this in 2016 by adopting Article 13-A of the Estates, Powers and Trusts Law, which sets out when executors, agents under a power of attorney, trustees, and guardians can access digital assets, and what proof they must give the company holding them.

How New York Law Decides Who Gets Access

Article 13-A sets up a clear order of priority:

Online tools come first. If a platform offers a tool that lets you name someone to receive (or not receive) your data, and you can change that choice at any time, your direction in that tool overrides a contrary instruction in your will, trust, or power of attorney.
Your estate planning documents come next. If you did not use an online tool, or the platform does not offer one, your will, trust, power of attorney, or other written record can allow or prohibit access.
Terms of service come last. Your direction under either of the first two steps overrides a conflicting term buried in the terms of service, unless the platform required you to agree to that term separately and specifically.

The practical lesson: your estate plan and your account settings must agree. If you name your son as a legacy contact in one app and your daughter as executor in your will, the app setting may control for that account.

Content versus the list

New York treats the content of your messages differently from other digital information. An executor can obtain the content of your emails and messages only if you consented in your will, trust, or other record (or through an online tool), or a court directs it. Without that consent, the executor may be limited to the catalogue: who you communicated with, and when.

Planning for Incapacity, Not Just Death

Most articles on this topic focus on what happens after you die. In our experience, the more urgent problem arises while you are alive but unable to manage your affairs, after a stroke, a serious accident, or a diagnosis of dementia.

Under New York law, an agent under your power of attorney can access the content of your electronic communications only to the extent the power of attorney expressly grants that authority. A general power of attorney that does not mention electronic communications may not be enough to get into the email account where your bills, statements, and tax documents now arrive.

If no power of attorney is in place, your family may need a court-appointed guardian, and Article 13-A addresses guardians’ access separately. Learn more on our Planning for Incapacity and Guardianships pages.

A Note on Cryptocurrency

Article 13-A works by directing companies that hold your data, called custodians, to disclose it to the right person. Cryptocurrency on an exchange has a custodian. Cryptocurrency in your own wallet may not, which means there may be no company your executor can ask for help.

If the private keys or recovery phrase are lost, the asset may be lost permanently. Your plan should record where your holdings are and how a trusted person can find the access information, without exposing that information in a document that could become public.

Business Owners: Your Digital Assets Are Business Assets

If you own a business, its domain name, website, online store, client database, and social media accounts may be worth more than its furniture. Make sure these are owned by the business rather than you personally, that more than one person has administrative access, and that your business succession plan addresses who controls them.

See our Business Succession Planning page for more.

Five Steps to Protect Your Digital Legacy

Make an inventory. List your devices, accounts, and digital holdings, and where access information is kept. Our free worksheet below walks you through it.
Use a password manager. Keep credentials in one secure place, and decide how a trusted person will get emergency access.
Set up legacy tools where available. Several major platforms let you name a legacy contact or a person to receive your data. Because these can override your will, choose people consistent with your estate plan.
Update your documents. Your will, revocable trust, and power of attorney should expressly address digital assets and the content of electronic communications.
Leave instructions. Tell your fiduciaries what you want: which accounts to preserve, which to memorialize, and which to delete.

Never put passwords or recovery phrases in your will

A will admitted to probate is filed with the Surrogate’s Court and is generally available to the public. Keep access information in a secure, separate place, and use your documents to grant authority, not to store secrets.

How Sverdlov Law Can Help

You are exactly the kind of client we do our best work for if you:

Want the truth, even when it is not what you hoped to hear.
Believe a good plan protects relationships, not just assets.
See your plan as a living commitment and want an advisor who stays with your family as life changes.

The people who choose us are not checking a box. They are making a deliberate choice to take care of the people they love, and that says a great deal about them.

However, we may not be the right fit if you want the fastest or least expensive set of documents, a plan without a real conversation about your family, or a way to move assets beyond the reach of a spouse or creditors with legitimate claims. Integrity is one of our core values, and we will not compromise it.

Every plan we complete is a Win for a family. You do the thoughtful work today, so the people you love inherit clarity instead of chaos, and a legacy they will be grateful for.

Frequently Asked Questions

Can my executor access my email after I die in New York?

The executor can generally obtain a catalogue of your communications. To obtain the actual content of your emails and messages, you must have consented in your will, trust, other record, or an online tool, or a court must order disclosure.

Does a social media legacy contact override my will?

It can. If the platform’s tool lets you change your choice at any time, a direction you give in that tool overrides a contrary instruction in your will, trust, or power of attorney.

Is my existing power of attorney enough?

Possibly not. For the content of your electronic communications, New York requires that the power of attorney expressly grant that authority. Have your power of attorney reviewed if it does not mention digital assets or electronic communications.

Should I list my passwords in my will?

No. A probated will is generally a public record, and passwords change. Use your will to grant authority and a secure method, such as a password manager, to store access information.

What happens to cryptocurrency if no one can access the wallet?

If the cryptocurrency is held in a self-custody wallet and no one can locate the private keys or recovery phrase, it may be unrecoverable. Planning ahead is the only reliable protection.

Ready to bring your estate plan into the digital age? Schedule a consultation with Sverdlov Law PLLC.

Legal References

This page provides general information, not legal advice. Reading it does not create an attorney-client relationship.