The conflict that has surfaced between fiduciaries of an estate and the Internet companies could be headed for a decision by the Supreme Court of the United States. Although letters and photographs, for example, are clearly an estate asset, emails and digital images are not fully recognized in the same way. Agents under powers of attorney, trustees, guardians and estate administrators need access to digital information to fulfill their fiduciary obligations. Although such access seemed axiomatic (a fiduciary of an estate is required to marshal all the decedent’s assets and stands in the decedent’s shoes) there has been serious opposition from the Internet providers. They argued that disclosure to the fiduciary is prohibited by federal law, namely the Stored Communications Act (SCA), 18 U.S.C. §2702 and the terms of their own service agreements.
In response, most states, including New York, have enacted legislation enabling a fiduciary to gain access to the decedent’s various types of electronic communications. New York’s statute, EPTL 13-A, like the legislation enacted in the other states, was based upon a recommendation of the Uniform Law Commission, Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA).
