The Surrogate’s Court Corner

October 5, 2017

By: Carole M. Bass

These days, much of our lives are lived online in a virtual world.  It is how we communicate with others, conduct our banking and business and do our shopping.  What happens to all of this online information when we die?

Last year, New York enacted Article 13-A of the Estates, Powers and Trusts Law (“EPTL”), modeled after the Revised Uniform Fiduciary Access to Digital Assets Act, attempting to provide a decedent’s personal representative with access to certain electronic communications after death while balancing the personal representative’s need for information with the decedent’s right to privacy in his electronic communications.

In Matter of Serrano, 2017-174 NYLJ 1202790870327 (Surr. Ct. NY County, June 14, 2017), the New York County Surrogate’s Court considered the application of EPTL Article 13-A in a case involving a request by a decedent’s spouse to access the decedent’s Google email, contacts and calendar information.

Under EPTL Article 13-A the custodian of electronic records (in this case, Google) is required to disclose to the personal representative of the decedent’s estate “a catalogue of electronic communications sent or received by the deceased user” – not the content of the communications, but the time, date and email address of the other party to the communication, including the decedent’s contact list, unless (i) the decedent prohibited such disclosure using an online tool or in his will, trust or other record, or (ii) the court directs otherwise.  The court in Serrano found that the decedent’s calendar was not a “communication” protected by the statute and, thus, must be disclosed to the personal representative.

The content of the decedent’s email communications may be disclosed if the decedent consented to such disclosure using an online tool or in a will, trust or other record or if a court finds that disclosure is reasonably necessary for the administration of the estate and disclosure would not violate the federal Electronic Communications Privacy Act or other applicable law.

To ensure that your wishes are carried out with respect to your electronic communications, it is important to include directions in your will or revocable trust as well as in your power of attorney.  Documents that have not been recently updated may lack provisions regarding electronic communications.

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