NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7869
SPONSOR: Weinstein 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 Surro-
gate's Court Advisory Committee.
The powers, duties, obligations, discretion and limitations of a fiduci-
ary 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 there-
in, "(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 para-
graph (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.
STATE OF NEW YORK
________________________________________________________________________
7869
2015-2016 Regular Sessions
IN ASSEMBLY
May 28, 2015
___________
Introduced by M. of A. WEINSTEIN -- (at request of the Office of Court
Administration) -- read once and referred to the Committee on Judici-
ary
AN ACT to amend the estates, powers and trusts law, in relation to fidu-
ciaries' powers
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph (b) of section 11-1.1 of the estates, powers and
2 trusts law is amended by adding a new subparagraph 23 to read as
3 follows:
4 (23) To exercises control over any and all rights to digital assets,
5 digital accounts or digital devices which are property of the estate or
6 trust, to the fullest extent permitted under applicable local, state or
7 federal law, including copyright law, or regulations notwithstanding the
8 provisions of any end user agreement. For the purposes of this section:
9 (A) "Digital account" means an electronic system for the purposes of
10 creating, generating, sending, sharing, communicating, receiving, stor-
11 ing, displaying or processing information that provides access to a
12 digital asset which currently exists or may subsequently exist as tech-
13 nology develops, including but not limited to, email accounts, social
14 network accounts, social media accounts, file-sharing accounts, health
15 insurance accounts, health care accounts, financial management accounts,
16 domain registration accounts, domain name service accounts, web hosting
17 accounts, tax-preparation services accounts, online store accounts and
18 affiliate programs thereto and any other online accounts that currently
19 exist for such comparable purposes.
20 (B) "Digital asset" means data, text, emails, documents, audio, video,
21 images, sounds, social-media content, social-networking content, codes,
22 health care records, health insurance records, computer-source codes,
23 computer programs, software, software licenses, databases, including the
24 usernames and passwords created to access such assets. "Digital asset"
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10844-01-5
A. 7869 2
1 does not include an underlying asset or liability that is governed under
2 other provisions of this chapter.
3 (C) "Digital device" means an electronic device that can create,
4 generate, send, share, communicate, receive, store, display, or process
5 information, and such electronic devices shall include, but shall not be
6 limited to, desktops, laptops, tablets, peripherals, servers, mobile
7 telephones, smartphones and any similar storage device or comparable
8 item that currently exists or may subsequently exist as technology
9 develops.
10 (D) "Electronic" means relating to technology, having electrical,
11 digital, magnetic, wireless, optical, electromagnetic or similar capa-
12 bilities.
13 § 2. This act shall take effect immediately and shall apply to all
14 estates, administrations, wills and trusts in existence before, on or
15 after its effective date.
