Relates to fiduciaries' powers

BILL NUMBER:S5775

Title of bill

An act to amend the estates, powers and trusts law, in relation to fiduciaries' powers

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Surrogate's Court Advisory Committee.

The powers, duties, obligations, discretion and limitations of a fiduciary are long established in New York law (Genesee Valley Trust Company v. Newborn, 168 Misc. 703(S. Ct., Monroe Co., 1938)). Current law in EPTL 11-1.1(b) sets forth the authority of a fiduciary. As stated therein, "(I)in the absence of contrary or limiting provisions in the court order or decree appointing a fiduciary, or in the subsequent order or decree, or in the will, deed or other instrument, every fiduciary is authorized:" to marshal the decedent's assets, pay the creditors of the administration or estate, to protect the interests of the decedent and otherwise, without exception, to stand in the shoes of the decedent under all applicable law (Matter of McCabe, 177 NY 584(1904)).

This measure amends the EPTL by adding a new subparagraph (23) to paragraph (b) of section 11-1.1 to expressly authorize a fiduciary to gain access to and exercise control over any and all rights to digital assets and digital accounts of the decedent to the fullest extent permitted under applicable local, state or federal law, including copyright law, or regulations notwithstanding the provisions of any end user agreement. Definitions of "digital account," "digital asset", "digital device" and "electronic" are added to the statute by this measure.

This measure is necessary because the law in New York currently may be unclear with regard to the authority of a fiduciary to gain access to digital assets in the same way as tangible assets. Recently, there have been many reports of refusals by Internet service providers to requests for access by court appointed fiduciaries. This measure would make clear what many practitioners have considered settled law in New York: New York does not distinguish between tangible and digital assets with regard to the powers, duties, obligations and responsibilities of a fiduciary (Blood v Kane, 130 NY 514 (1892)). This legislation will help a decedent's loved ones wind down the decedent's personal and legal affairs in a time when many people have digital bank accounts, and have stored digitally their passwords, pictures and other important financial and personal property.

This measure does not change the law with regard to the ability of any person, when living, to specify in his or her power of attorney or will that his or her fiduciary may not have access to digital assets (G.O.L. 5-1501B, 5-1503; EPTL 11-1.1(b)).

This measure would take effect immediately and apply to all estates, administrations, wills and trusts in existence before, on or after its effective date.

Legislative History:

None. New proposal.