On September 29, 2016, a bill was signed into law by Governor Cuomo adding Article 13-A to the New York Estates Powers and Trust Law (the "EPTL"). This legislation is New York State's version of the "Uniform Fiduciary Access to Digital Assets Act" (the "Act") which nineteen (19) other states have also enacted into law. The Act is effective immediately. It is meant to provide certainty to all types of fiduciaries - including: trustees, executors, administrators, agents under a power of attorney and guardians - in their efforts to acquire access to digital assets. They now have the authority to gain access to, manage, distribute and copy or delete digital assets. The Act covers digital assets used for personal use and does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer's business.
What this all means is that New Yorkers can now effectively designate who can obtain access to their digital records upon their death or incapacity and, moreover, whether they might wish to prohibit such disclosure either in whole or in part. Although this can be done by will, trust, or power of attorney, an Internet service providers' online tools overrides a contrary direction by the user in a will, trust, or power of attorney. Accordingly, it is important to address your dispositive wishes for your digital assets in your will, trust, and power of attorney; and ensure that such wishes are not inadvertently overridden by a contrary direction in an online tool that might be out of date.