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Matter of Estate of Swezey

February 8, 2019 • Posted By • Trusts and Estates

Decedent’s property includes assets in cyberspace, even if the will does not expressly state.

In the case of the Estate of Swezey, the executor asked Apple Inc. for photographs stored in decedent’s iCloud account. Apple informed the executor of the estate that a court order was necessary to disclose data contained within an Apple ID. For Apple to release the photographs, it was not sufficient that decedent’s will left all of his personal property along with the residuary estate to the executor.  

The decedent was an avid photographer who took most of the family photos, as well as artistic photos, using his iPhone. Decedent stored the photos automatically on the iCloud account connected to his Apple ID. The executor had personal knowledge of two emails that could be associated with decedent’s Apple ID account.

There was no provision in decedent’s will that expressly authorized the executor to access decedent’s digital assets. Also, there were no other documents authorizing such access. Nevertheless, the executor alleged that he and decedent gave each other implicit consent to access each other’s digital assets evidenced by the fact that their computers were next to each other in their home office and they never made any effort to shield computer screens or deny access to their digital assets.

The New York County Surrogate’s Court did not analyze the executor’s claim of implicit consent. Instead the court focused on what constitutes personal property. Under EPTL 1-2.15, decedent’s property is defined as “anything that may be the subject of ownership, and is real or personal property.” The court expressed that personal property includes assets kept in cyberspace.

The next step for the court was understanding the rules and procedures for digital assets under EPTL Article 13. EPTL 13-A-1 defines a digital asset as “an electronic record in which an individual has a right or interest.” There are two types of digital assets addressed in the court’s opinion. Digital assets are either electronic communications or not. Electronic communications require proof of user’s consent or a court order for disclosure. Digital assets that are not electronic communications do not require user’s consent or a court order for disclosure to the estate.   

New York County Surrogate’s Court found that photographs stored on decedent’s Apple account were not electronic communications and did not require a court order. Thus, Apple was required to “disclose the photographs stored in decedent’s Apple account associated with his Apple ID identifiable by decedent’s two email accounts as listed in the petition.” 

New York County Surrogate’s Court concluded that the will did not need to expressly state that the executor would inherit decedent’s digital assets, specifically photographs saved in decedent’s Apple ID account. The executor inherited decedent’s personal property under the will, which encompassed decedent’s digital assets.