NY State Senate Bill 2015-S5775

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2016	referred to judiciary
Jun 02, 2015	referred to judiciary

2015-S5775 (ACTIVE) - Details

See Assembly Version of this Bill:: A7869
Current Committee:: Senate Judiciary
Law Section:: Estates, Powers and Trusts Law
Laws Affected:: Amd §11-1.1, EPT L

2015-S5775 (ACTIVE) - Summary

Relates to fiduciaries' powers.

2015-S5775 (ACTIVE) - Sponsor Memo

                                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.

2015-S5775 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5775

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                              June 2, 2015
                               ___________

Introduced  by Sen. BONACIC -- (at request of the Office of Court Admin-
  istration) -- read twice and ordered printed, and when printed  to  be
  committed to the Committee on Judiciary

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:

  Section 1. Paragraph (b) of section 11-1.1 of the estates, powers  and
trusts  law  is  amended  by  adding  a  new  subparagraph 23 to read as
follows:
  (23) TO EXERCISES CONTROL OVER ANY AND ALL RIGHTS TO  DIGITAL  ASSETS,
DIGITAL  ACCOUNTS OR DIGITAL DEVICES WHICH ARE PROPERTY OF THE ESTATE OR
TRUST, 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. FOR THE PURPOSES OF THIS SECTION:
  (A)  "DIGITAL  ACCOUNT" MEANS AN ELECTRONIC SYSTEM FOR THE PURPOSES OF
CREATING, GENERATING, SENDING, SHARING, COMMUNICATING, RECEIVING,  STOR-
ING,  DISPLAYING  OR  PROCESSING  INFORMATION  THAT PROVIDES ACCESS TO A
DIGITAL ASSET WHICH CURRENTLY EXISTS OR MAY SUBSEQUENTLY EXIST AS  TECH-
NOLOGY  DEVELOPS,  INCLUDING  BUT NOT LIMITED TO, EMAIL ACCOUNTS, SOCIAL
NETWORK ACCOUNTS, SOCIAL MEDIA ACCOUNTS, FILE-SHARING  ACCOUNTS,  HEALTH
INSURANCE ACCOUNTS, HEALTH CARE ACCOUNTS, FINANCIAL MANAGEMENT ACCOUNTS,
DOMAIN  REGISTRATION ACCOUNTS, DOMAIN NAME SERVICE ACCOUNTS, WEB HOSTING
ACCOUNTS, TAX-PREPARATION SERVICES ACCOUNTS, ONLINE STORE  ACCOUNTS  AND
AFFILIATE  PROGRAMS THERETO AND ANY OTHER ONLINE ACCOUNTS THAT CURRENTLY
EXIST FOR SUCH COMPARABLE PURPOSES.
  (B) "DIGITAL ASSET" MEANS DATA, TEXT, EMAILS, DOCUMENTS, AUDIO, VIDEO,
IMAGES, SOUNDS, SOCIAL-MEDIA CONTENT, SOCIAL-NETWORKING CONTENT,  CODES,
HEALTH  CARE  RECORDS,  HEALTH INSURANCE RECORDS, COMPUTER-SOURCE CODES,
COMPUTER PROGRAMS, SOFTWARE, SOFTWARE LICENSES, DATABASES, INCLUDING THE
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

S. 5775                             2

DOES NOT INCLUDE AN UNDERLYING ASSET OR LIABILITY THAT IS GOVERNED UNDER
OTHER PROVISIONS OF THIS CHAPTER.
  (C)  "DIGITAL  DEVICE"  MEANS  AN  ELECTRONIC  DEVICE THAT CAN CREATE,
GENERATE, SEND, SHARE, COMMUNICATE, RECEIVE, STORE, DISPLAY, OR  PROCESS
INFORMATION, AND SUCH ELECTRONIC DEVICES SHALL INCLUDE, BUT SHALL NOT BE
LIMITED  TO,  DESKTOPS,  LAPTOPS,  TABLETS, PERIPHERALS, SERVERS, MOBILE
TELEPHONES, SMARTPHONES AND ANY SIMILAR  STORAGE  DEVICE  OR  COMPARABLE
ITEM  THAT  CURRENTLY  EXISTS  OR  MAY  SUBSEQUENTLY EXIST AS TECHNOLOGY
DEVELOPS.
  (D) "ELECTRONIC" MEANS  RELATING  TO  TECHNOLOGY,  HAVING  ELECTRICAL,
DIGITAL,  MAGNETIC,  WIRELESS, OPTICAL, ELECTROMAGNETIC OR SIMILAR CAPA-
BILITIES.
  S 2. This act shall take effect immediately and  shall  apply  to  all
estates,  administrations,  wills  and trusts in existence before, on or
after its effective date.

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Senate Bill S5775

Sponsored By

Archive: Last Bill Status - In Senate Committee Judiciary Committee

2015-S5775 (ACTIVE) - Details

2015-S5775 (ACTIVE) - Summary

2015-S5775 (ACTIVE) - Sponsor Memo

2015-S5775 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S5775

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Sponsored By

John J. Bonacic

Archive: Last Bill Status - In Senate Committee Judiciary Committee

2015-S5775 (ACTIVE) - Details

2015-S5775 (ACTIVE) - Summary

2015-S5775 (ACTIVE) - Sponsor Memo

2015-S5775 (ACTIVE) - Bill Text download pdf

Comments