New York treats email accounts, cloud storage, social media profiles, online banking logins and cryptocurrency as part of an estate plan, and the rules for who can reach them after death or incapacity are in Article 13-A of the Estates, Powers and Trusts Law (EPTL), titled "Administration of Digital Assets". The article decides which instruction wins when a will, a provider's settings and the terms of service disagree, why an executor can see who you emailed but not what you wrote, and what paperwork a provider can demand.
What counts as a "digital asset" under New York law?
A digital asset is any electronic record in which a person has a right or interest. EPTL § 13-A-1(i) defines it that way and adds a limit that matters for planning: the term "does not include an underlying asset or liability unless the asset or liability is itself an electronic record." Your online brokerage login is a digital asset; the shares in the account are not, and they pass under the ordinary rules for securities.
The statute also names the other side of the relationship. A "custodian" under EPTL § 13-A-1(g) is a person that carries, maintains, processes, receives or stores a digital asset of a user, which covers email providers, social networks, cloud services and exchanges. A "fiduciary" under § 13-A-1(m) includes an executor, administrator, guardian, agent under a power of attorney and trustee.
Which instruction wins: the online tool, the will, or the terms of service?
A direction given through a provider's own online tool wins first, a will or other written record comes second, and the terms of service control only when the user left no direction. That ranking is set by EPTL § 13-A-2.2.
An "online tool" is defined in § 13-A-1(p) as an electronic service provided by a custodian that lets the user, in an agreement separate from the terms of service, give directions about disclosure of digital assets to a third person. When such a tool lets the user change or delete the direction at any time, it overrides the will:
"If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney, or other record."
— New York Estates, Powers and Trusts Law (EPTL) § 13-A-2.2(a)If you never used the provider's tool, or the provider does not offer one, § 13-A-2.2(b) lets you allow or prohibit disclosure to a fiduciary in a will, trust, power of attorney or other record, including the content of electronic communications.
Either kind of direction beats a contrary clause in the provider's standard terms, unless the provider made you take a separate, deliberate step:
"A user's direction under paragraph (a) or (b) overrides a contrary provision in a terms-of-service agreement that does not require the user to act affirmatively and distinctly from the user's assent to the terms of service."
— New York Estates, Powers and Trusts Law (EPTL) § 13-A-2.2(c)The practical consequence: if you set a legacy contact inside an account years ago and later sign a will saying something different, the old account setting can control. Review those settings whenever you update your will. Where you leave no direction at all, § 13-A-2.3(c) allows a fiduciary's access to be modified or eliminated by a user, by federal law, or by a terms-of-service agreement.
Why can an executor see who I emailed but not what I wrote?
New York separates the catalogue of your communications from their content, and the catalogue is released by default while the content requires your consent or a court order. The statute defines the catalogue narrowly:
"'Catalogue of electronic communications' means information that identifies each person with which a user has had an electronic communication, the time and date of the communication, and the electronic address of the person."
— New York Estates, Powers and Trusts Law (EPTL) § 13-A-1(d)"Content" under § 13-A-1(e) is information concerning the substance or meaning of the communication that was sent or received by the user, is held by a provider of an electronic-communication or remote-computing service to the public, and is not readily accessible to the public.
Under EPTL § 13-A-3.2, unless the user prohibited disclosure or the court directs otherwise, a custodian shall disclose to the executor or administrator the catalogue and digital assets other than content. Under EPTL § 13-A-3.1, the custodian discloses the content of electronic communications only if the deceased user consented or a court directs disclosure. If your will is silent, your executor will likely see a list of correspondents and dates and will need to ask the Surrogate's Court for anything more.
For an incapacitated person, the same line runs through the power of attorney. EPTL § 13-A-3.3 requires disclosure of content to an agent only "[t]o the extent a power of attorney expressly grants an agent authority over the content of electronic communications sent or received by the principal". We review this point with clients who are also updating their power of attorney, a document we discuss in our article on abusive powers of attorney in New York.
What must an executor give a custodian to get access?
An executor or administrator must give the custodian a written request, a copy of the death certificate, and a certified copy of the letter of appointment, a small-estate affidavit or a court order. Those three items appear in both EPTL § 13-A-3.1 and § 13-A-3.2. For content, § 13-A-3.1(d) adds a fourth: unless the user gave direction through an online tool, a copy of the will, trust or other record evidencing the user's consent to disclosure of content.
The custodian may also ask for more. Under § 13-A-3.1(e) and § 13-A-3.2(d), it can request:
- a number, username, address or other unique account identifier assigned by the custodian;
- evidence linking the account to the user;
- for non-content assets, an affidavit stating that disclosure is reasonably necessary for administration of the estate; or
- a finding by the court on points such as whether the user had a specific account with the custodian or whether disclosure is reasonably necessary for administration of the estate.
The letter of appointment comes from the Surrogate's Court. In Manhattan that means the New York County Surrogate's Court, and our guide to letters testamentary in Manhattan explains how executors obtain them.
How long does a custodian have to respond?
Sixty days. The deadline runs from the custodian's receipt of the required information:
"Not later than sixty days after receipt of the information required under sections 13-A-3.1 through 13-A-4.1, a custodian shall comply with a request under this article from a fiduciary or designated recipient to disclose digital assets or terminate an account."
— New York Estates, Powers and Trusts Law (EPTL) § 13-A-4.2(a)If the custodian does not comply, § 13-A-4.2(a) lets the fiduciary apply to the court for an order directing compliance. Keep in mind the limits in EPTL § 13-A-2.4: the custodian chooses whether to give full access, partial access or a copy of the records; it may assess a reasonable administrative charge; and it need not disclose a digital asset the user deleted. Under § 13-A-4.2(d), a custodian may deny a request if it is aware of any lawful access to the account after receiving the fiduciary's request.
What can a fiduciary do once access is granted?
A fiduciary manages digital assets under the same duties that apply to tangible property. EPTL § 13-A-4.1(a) lists the duty of care, the duty of loyalty and the duty of confidentiality. The authority is also limited:
"(4) may not be used to impersonate the user."
— New York Estates, Powers and Trusts Law (EPTL) § 13-A-4.1(b)Under § 13-A-4.1(g), a fiduciary may ask a custodian to terminate the account by a written request accompanied by the death certificate and proof of authority.
How does New York treat cryptocurrency and hardware wallets?
Crypto held on an exchange is held by a custodian and follows the disclosure rules above; crypto held in self-custody is reachable by the fiduciary directly, but only if the fiduciary can find the keys. EPTL § 13-A-4.1(c) gives a fiduciary with authority over a decedent's property the right to access any digital asset in which the decedent had a right or interest that is not held by a custodian or subject to a terms-of-service agreement. Section 13-A-4.1(e) adds that a fiduciary with authority over the decedent's tangible personal property has the right to access the property and any digital asset stored in it, such as a laptop, phone or hardware wallet, and is an authorized user for purposes of computer-fraud laws.
The statute gives the right, not the means. No court order can recover a lost seed phrase. That is why the planning steps below matter more for crypto than for any other asset.
What practical steps should New Yorkers take now?
Start with an inventory and a written direction; the statute rewards people who leave instructions and penalizes silence. We recommend these steps:
- Build an inventory. List every account: email, cloud storage, social media, banking and brokerage logins, domain names, online businesses, loyalty programs and crypto exchanges. Note which phone receives two-factor codes.
- Check each provider's online tool. Where a provider offers a legacy or inactive-account setting, decide whether to use it. Under § 13-A-2.2(a), that setting can override your will, so it must match your plan.
- Put a digital assets clause in your will and trust. State expressly whether your executor and trustee may receive the content of your electronic communications, not only the catalogue. Silence defaults to catalogue only.
- Update your power of attorney. Add an express grant of authority over the content of electronic communications if you want your agent to reach your email during incapacity, as § 13-A-3.3 requires.
- Use a password manager with a recovery plan. Keep credentials in one encrypted vault and leave the master password and recovery codes in a sealed, separately stored document your executor can find. Do not write passwords into the will itself.
- Secure crypto keys deliberately. Record where hardware wallets and seed phrases are kept, consider splitting the information between two trusted places, and make sure at least one fiduciary knows how to use it.
- Review after every major change. New accounts, a new phone or a new will each call for a quick review of the inventory and provider settings.
Digital assets fit within a broader plan. If you are deciding between a will and a revocable trust, see our comparison of a living trust vs. a will in New York; executors already in administration can start with our New York probate and estate administration guide.
Talk to us about your digital estate plan
Estate Law New York, led by Managing Attorney Alan Vaitzman, Esq., drafts wills, trusts and powers of attorney with digital asset provisions written to Article 13-A, and represents executors who need access to a decedent's accounts. Our office is on the 17th Floor, 299 Broadway, New York, NY 10007. Schedule a free consultation to review your accounts and documents.
Frequently Asked Questions
Can my executor read my emails after I die in New York?
Only if you consented or a court directs it. Under EPTL § 13-A-3.1, the custodian discloses the content of electronic communications to an executor or administrator only on the user's consent or a court order; otherwise the executor generally receives the catalogue under § 13-A-3.2.
Does a Facebook or Google legacy setting override my will?
It can. Under EPTL § 13-A-2.2(a), a direction given through a custodian's online tool that the user can modify or delete at all times overrides a contrary direction in a will, trust, power of attorney or other record.
What is the difference between the catalogue and the content of my emails?
The catalogue under EPTL § 13-A-1(d) identifies each person you communicated with, the time and date, and their electronic address. Content is the substance or meaning of the communication, which requires your consent or a court order to be disclosed after death.
What documents does an executor need to get into a deceased person's online account?
A written request, a copy of the death certificate, and a certified copy of the letter of appointment, a small-estate affidavit or a court order, under EPTL §§ 13-A-3.1 and 13-A-3.2. The custodian may also ask for an account identifier, evidence linking the account to the user, or a court finding.
How long does a company have to respond to an executor's request for digital assets?
Under EPTL § 13-A-4.2(a), a custodian must comply not later than sixty days after receiving the required information. If it does not, the fiduciary may apply to the court for an order directing compliance.
Can my agent under a power of attorney access my email if I become incapacitated?
Only if the power of attorney expressly grants authority over the content of electronic communications. EPTL § 13-A-3.3 conditions disclosure of content to an agent on that express grant.
How can my family access my cryptocurrency if I die?
For self-custodied crypto, EPTL § 13-A-4.1(c) and (e) give the fiduciary the right to access digital assets not held by a custodian and devices that store them, but the fiduciary still needs your keys. Record where your hardware wallet and seed phrase are kept so your executor can find them.
Disclaimer: This article is for informational purposes only and does not constitute legal or tax advice. No attorney-client relationship is formed by reading this publication. Prior results do not guarantee a similar outcome. Reviewed by Alan Vaitzman, Esq. — Managing Attorney at Estate Law New York. Working in estate law since 2017. J.D., New York Law School (2021); B.A. in Psychology, Brooklyn College (2016). Admitted to practice in New York (Reg. No. 5989199), New Jersey, and Florida (Bar No. 1040681). Office: 299 Broadway, 17th Floor, New York, NY 10007.