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Can my executor use an “electronic digital will” in New York?

When a person dies in New York State after having previously formed a will, that person is then considered a testate decedent. The Surrogate's Court of New York has the authority to supervise the appointment and qualification of any individuals named in the will as fiduciaries of the decedent's estate.

The term "fiduciary" is often used generically to refer to individuals acting in the capacity as an executor of the estate. The duties expected of these fiduciaries are very important. For example, they are tasked with carrying out the collection of the decedent's assets and distributing them based on outstanding debts and other obligations. The fiduciaries must also notify anyone who may have a legal interest in the decedent's estate.

However, the issue of whether a fiduciary could also "stand in the shoes" of the decedent and access their electronic digital information was not well resolved in the Surrogate Courts. Most of us conduct large portions of our financial transactions online. Many of us also have extensive music, video and literary collections stored in online accounts. Who should be in charge of retrieving all of that data and distributing it amongst the heirs of the decedent's accounts? Recently, the New York State legislature took a new look at that issue and passed laws which now give increased powers to a fiduciary in handling such matters.

An adopted amendment to New York estate planning laws now means that any email or electronic data storage account which is opened after Dec. 31, 2014 must also allow New York residents the ability to nominate an executor to access their accounts after their death. The law also provides provisions in which the testator, or the person making the will, can also set restrictions as to which accounts can be accessed by fiduciaries. The law also gives protections to the companies storing the electronic data so that they don't have any legal liability in providing the fiduciary with the access.

If you are a New York resident contemplating the formation of a will, which might prove helpful in establishing your digital estate plan for the future.

Source: New York Senate- Estates, Powers & Trusts Law, "Senate Bill 6176-2013 and Senate Bill 6176A-2013" Oct. 07, 2014

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