How fiduciaries obtain and manage digital estate records

By Richard C. Wilson

Begin with the account, the requested records and the person making the request. Use the disclosure sections below to prepare questions for the estate attorney and custodian, then use the inventory guide and checklist to organize the documents.

Research notice: Core authorities include Minnesota's digital asset statute, federal provider disclosure law and the state statutes listed in Sources. State examples apply to the identified jurisdiction. Ask an estate attorney to confirm the applicable disclosure procedure, consent, authority documents and federal restrictions before acting.

The record type affects disclosure

In Minnesota, for example, communication content under the digital asset statute means information concerning a communication's substance or meaning that meets three conditions. The communication must have been sent or received by a user. It must be in electronic storage with a custodian providing electronic communication service to the public, or carried or maintained by a custodian providing remote computing service to the public. It must not be readily accessible to the public. A catalog identifies correspondents, communication dates and times, and electronic addresses. Other states differ.

For the request packet, label the records sought as communication content, a communication catalog or other digital assets. Describe the practical task beside each request, such as reviewing accounting exports, statements, contracts or transaction records. These examples are preparation suggestions rather than a legally mandated document list.

In Colorado, unless the user prohibited disclosure or a court directs otherwise, a custodian must disclose a deceased user's communication catalog and digital assets other than communication content to the estate's personal representative when the required documentation is supplied. The representative must provide a physical or electronic written request, a certified death certificate, and a certified appointment letter or a small estate affidavit or court order.

If requested by the Colorado custodian, the representative must also provide an account identifier, evidence linking the account to the user, an affidavit that disclosure is reasonably necessary for estate administration, or a court finding of account identity or reasonable necessity for administration. For small estate eligibility, use the applicable state probate guide before selecting an affidavit route.

Documentation establishes authority

In Minnesota, for example, unless the user prohibited disclosure or a court directs otherwise, a custodian must disclose a deceased user's communication catalog and other digital assets excluding communication content to the personal representative when the required documentation is supplied. The representative must provide a physical or electronic written request, a certified death certificate, and a certified copy of the appointment letter, court order or Affidavit of Collection of Personal Property. The affidavit route is subject to the conditions of Minnesota's collection affidavit statute.

If requested by the Minnesota custodian, the representative must also provide an account identifier, evidence linking the account to the user, an affidavit that disclosure is reasonably necessary for estate administration, or a court finding of account identity or reasonable necessity for administration. Other states differ. Use the applicable state probate guide to review the collection affidavit conditions.

Keep the authority document, death certificate, account identifier and correspondence with the custodian together for the attorney's review.

In Pennsylvania, unless the user prohibited disclosure or the court directs otherwise, a custodian must disclose a deceased user's communication catalog and other digital assets excluding communication content when the personal representative supplies the required documentation. The representative must provide a physical or electronic written request, a certified death certificate and certified letters.

If requested by the Pennsylvania custodian, the representative must also provide an account identifier, evidence linking the account to the user, an affidavit that disclosure is reasonably necessary for estate administration, or a court finding of account identity or reasonable necessity for administration.

For Pennsylvania catalog disclosure, letters issued by a register have the effect of the specified judicial findings if the representative completes the affidavit procedure, unless court rules or a court order provide otherwise. The representative must file an affidavit with the register, subject to statutory falsification penalties, stating the account identifier, evidence linking the account to the user and reasonable necessity for administration. Upon request, the representative must provide the custodian a copy bearing evidence of filing.

The Pennsylvania affidavit may be included in the specified petition or oath, or in a supplement filed with and sworn before the register. The register mechanism concerns catalog disclosure and supplies no independent authorization for communication content.

Delaware requests are covered in the Delaware state guide.

Custodians may choose the form of access

In Minnesota, for example, the custodian may choose full account access, partial access sufficient for assigned tasks, or a record copy of assets the user could have accessed when the request arrived if alive, fully capable and able to access the account. The custodian may charge a reasonable administrative fee and need not disclose assets deleted by the user.

If a user directs or a fiduciary requests disclosure of some but not all assets, the Minnesota custodian need not disclose them if segregation would impose an undue burden. If the custodian believes the request imposes that burden, the custodian or fiduciary may seek a court order for a subset limited by date, all assets to the fiduciary or designated recipient, no assets, or all assets to the court for review in chambers. Other states differ.

North Carolina access formats

In North Carolina, the custodian may choose full access, partial access sufficient for assigned tasks, or a record copy of assets the user could have accessed when the request arrived if alive, fully capable and able to access the account. The custodian may assess a reasonable administrative charge and need not disclose assets deleted by the user.

If a user directs or a fiduciary requests disclosure of some but not all assets, the North Carolina custodian need not disclose them if segregation would impose an undue burden. If the custodian believes the request imposes that burden, the custodian or fiduciary may seek a court order for a subset limited by date, all assets to the fiduciary or designated recipient, no assets, or all assets to the court for private review. Deceased user communication content follows the separate North Carolina content disclosure procedure described below, subject to federal limits.

Virginia access formats

In Virginia, the custodian may choose full access, partial access sufficient for assigned tasks, or a record copy of assets the user could have accessed when the request arrived if alive, fully capable and able to access the account. The custodian may assess a reasonable administrative charge and need not disclose assets deleted by the user.

If a user directs or a fiduciary requests disclosure of some but not all assets, the Virginia custodian need not disclose them if segregation would impose an undue burden. If the custodian believes the request imposes that burden, the custodian or fiduciary may seek a court order for a subset limited by date, all assets to the fiduciary or designated recipient, no assets, or all assets to the court for private review. Deceased user communication content follows the separate Virginia content disclosure procedure described below, subject to federal and contractual limits.

Washington access formats

In Washington, the custodian has sole discretion to provide full access, partial access sufficient for assigned tasks, or a record copy of assets the user could have accessed when the request arrived if alive, fully capable and able to access the account. The custodian may impose a reasonable administrative charge and need not disclose assets deleted by the user.

If a user directs or a fiduciary or designated recipient requests disclosure of some but not all assets, the Washington custodian need not disclose them if segregation would impose an undue burden. If the custodian believes the request imposes that burden, the custodian, fiduciary or designated recipient may seek a court order for a subset limited by date, all assets to the fiduciary or designated recipient, no assets, or all assets to the court for private review.

Florida access formats

In Florida, the custodian may choose full access, partial access sufficient for assigned tasks, or a record copy of assets the user could have accessed when the request arrived if alive, fully capable and able to access the account. The custodian may charge a reasonable administrative fee and need not disclose assets deleted by the user.

If a user directs or a fiduciary requests disclosure of some but not all assets to a fiduciary or designated recipient, the Florida custodian need not disclose them if segregation would impose an undue burden. If the custodian believes the request imposes that burden, the custodian or fiduciary may seek a court order for a subset limited by date, all assets to the fiduciary or designated recipient, all assets to the court for review in chambers, or no assets.

Use these three access formats as headings for the conversation with the custodian:

• Full account access: ask which request procedure applies.
• Partial access: describe the assigned task and requested records.
• Copies: identify the records sought and the practical purpose of the request.

Communication content has additional restrictions

Federal law prohibits a provider of electronic communication service to the public from knowingly divulging communication content while in electronic storage by that service, subject to statutory exceptions.

A separate federal prohibition applies to a provider of remote computing service to the public for communications carried or maintained on behalf of a subscriber or customer. The communications must have been received by electronic transmission from that person or created by processing communications received that way. They must be held solely for storage or computer processing, with the provider unauthorized to access their contents to provide other services. Statutory exceptions also apply to this prohibition.

Federal law permits disclosure to an addressee, intended recipient or their agent, as authorized by the cited federal provisions, or with lawful consent of the originator, an addressee or intended recipient, or, for remote computing service, the subscriber. A state appointment or state court order alone does not establish a federal exception.

The cited authorization provisions are sections 2517, 2511(2)(a) and 2703 of Title 18. These are examples of federal exceptions, rather than an exhaustive list.

For public electronic communication and remote computing service providers, the federal prohibition on divulging subscriber or customer records other than protected communication content concerns disclosure to a governmental entity. The statute permits disclosure of those noncontent records to a person other than a governmental entity. That permission does not itself compel disclosure or transfer ownership.

North Carolina communication content

In North Carolina, a deceased user's consent or court direction requires disclosure of communication content sent or received by the user to the personal representative when the required documentation is supplied, subject to federal disclosure limits. The representative must provide a physical or electronic written request and a certified death certificate.

The North Carolina authority document must be certified letters of administration or testamentary, a certified qualifying small estate affidavit, a certified summary administration order, or a court order. Unless the user provided direction through an online tool, the representative must also provide a will, trust, power of attorney or other record evidencing consent to content disclosure.

If requested by the North Carolina custodian, the representative must also provide an account identifier, evidence linking the account to the user, or a court finding in one of the statutory alternatives. Those alternatives concern account identity, compliance with the federal stored communications provisions and federal telecommunications privacy law or other applicable law, user consent unless an online tool supplied directions, or reasonable necessity for estate administration.

Virginia communication content

In Virginia, a deceased user's consent or court direction requires disclosure of communication content sent or received by the user to the personal representative when the required documentation is supplied, subject to federal disclosure limits. The representative must provide a physical or electronic written request, a certified death certificate, and a certified appointment letter or a small estate affidavit or court order.

Unless the user provided direction through an online tool, the Virginia representative must also provide a will, trust, power of attorney or other record evidencing consent to content disclosure. If requested by the custodian, the representative must provide an account identifier, evidence linking the account to the user, or a court finding in one of the statutory alternatives.

The Virginia court finding alternatives concern account identity, compliance with the federal stored communications provisions and federal telecommunications privacy law or other applicable law, user consent unless an online tool supplied directions, or reasonable necessity for estate administration.

Virginia preserves contractual access and use rights and grants no expanded rights beyond the user's rights. User direction and federal law can modify or eliminate access. Terms of service can also modify or eliminate access if the user has not provided direction under Virginia's statutory user direction provision.

Pennsylvania communication content

In Pennsylvania, a deceased user's consent or court direction requires disclosure of communication content sent or received by the user to the personal representative when the required documentation is supplied, subject to federal disclosure limits. The representative must provide a physical or electronic written request, a certified death certificate and certified letters.

Unless the user provided direction through an online tool, the Pennsylvania representative must also provide a will, trust, power of attorney or other record evidencing consent to content disclosure. If requested by the custodian, the representative must provide an account identifier, evidence linking the account to the user, or a court finding in one of the statutory alternatives.

The Pennsylvania court finding alternatives concern account identity, compliance with the federal stored communications provisions and federal telecommunications privacy law or other applicable law, user consent unless an online tool supplied directions, or reasonable necessity for estate administration.

For small estate and summary administration eligibility, consult the applicable state probate guide. For New York disclosure procedures, use the New York state guide and ask counsel to review the relevant records and request.

Fiduciary duties apply to digital records

In Minnesota, for example, the duties imposed on fiduciaries managing tangible property, including care, loyalty and confidentiality, apply to digital asset management. Authority remains subject to applicable terms of service except as the statutory user direction provisions provide, other applicable law including copyright, and the fiduciary's duty scope. Authority may not be used to impersonate the user. Other states differ.

In Washington, duties of care, loyalty and confidentiality imposed on fiduciaries managing tangible property apply to digital asset management. Authority remains subject to applicable terms except as the statutory user direction provisions provide, other applicable law including copyright, and fiduciary duty scope. Impersonation is prohibited.

In Colorado, duties of care, loyalty and confidentiality imposed on fiduciaries managing tangible property extend to digital assets. Authority remains subject to applicable terms except as the statutory user direction provisions provide, other applicable law including copyright, and the fiduciary's duty scope. Authority may not be used to impersonate the user.

In Wyoming, duties of care, loyalty and confidentiality imposed on fiduciaries managing a decedent's, ward's, principal's or settlor's tangible personal property apply to digital asset management. Authority remains subject to applicable terms unless the user directs otherwise under the statutory direction provision, other applicable law, and fiduciary duty scope. Authority may not be used to impersonate the user.

For the administration discussion, identify the requested task and who will review the resulting records. Take questions about confidential correspondence, unrelated personal material and the scope of the fiduciary's assignment to the estate attorney before requesting broader access.

Business and investment records in an estate

For business and investment records, start with practical examples such as accounting exports, statements, contracts and transaction records. Use the digital estate inventory guide to organize the account list and access questions, and use the checklist to prepare the adviser meeting.

In Minnesota, for example, the digital asset statute covers fiduciaries acting under wills or powers of attorney, personal representatives acting for decedents, conservatorship proceedings and trustees acting under trusts. It applies to a custodian when the user resides in Minnesota or resided there at death. It excludes an employer's digital asset used by an employee in the ordinary course of the employer's business. Other states differ.

In Minnesota, for example, unless the will provides otherwise, a personal representative generally has the right and duty to take possession or control of the decedent's property. Real or tangible personal property may remain with or be surrendered to the presumptively entitled person until the representative judges possession necessary for administration.

A Minnesota personal representative's delivery request is conclusive evidence of necessity in a possession action against an heir or devisee. The representative must pay taxes on the estate in possession and take reasonably necessary steps to manage, protect and preserve it. The representative may sue for possession or determination of title. Other states differ.

Keep employer account questions with the business's advisers. Use the cryptocurrency custody guide for questions about keys, custody and succession.

Inventory and later discoveries

In Minnesota, for example, discovering omitted property or an erroneous or misleading original value or description requires the personal representative to make a supplementary inventory or appraisement. It must show the new property's market value at death or the revised market value or description, and any appraisers or other supporting data relied upon.

The Minnesota representative must furnish copies or information to persons interested in the new information and file the supplement with the court if the original inventory was filed. Other states differ.

For preparation, mark newly located accounts and uncertain descriptions on the working list for counsel. Use the inventory guide for record organization and the applicable state probate guide for initial inventory requirements.

Requests for trust accounts

In Minnesota, for example, unless a court order or trust provision provides otherwise, a custodian must disclose to a trustee who is the account's original user digital assets of that account held in trust. That includes the trustee's communication catalog and communication content, subject to federal disclosure limits. Other states differ.

In Minnesota, for example, unless a court order, user direction or trust provision provides otherwise, a custodian must disclose qualifying communication content to a trustee who was not the original account user when the required documentation is supplied, subject to federal disclosure limits. The content must have been sent or received by an original or successor user and be held by the custodian in the trust account.

For that Minnesota content request, the trustee must provide a physical or electronic written request and a certified trust instrument or statutory trust certification that includes consent to content disclosure. The trustee must also certify under penalty of perjury that the trust exists and the trustee currently serves. If requested by the custodian, the trustee must provide an account identifier or evidence linking the account to the trust. Other states differ.

In Minnesota, for example, unless a court order, user direction or trust provision provides otherwise, a custodian must disclose qualifying catalogs and other noncontent digital assets to a trustee who was not the original account user when the required documentation is supplied. The catalog must concern communications sent or received by an original or successor user and held in the trust account. Other noncontent assets must be assets in which the trust has a right or interest.

For that Minnesota catalog and noncontent request, the trustee must provide a physical or electronic written request and a certified trust instrument or statutory trust certification. The trustee must also certify under penalty of perjury that the trust exists and the trustee currently serves. If requested by the custodian, the trustee must provide an account identifier or evidence linking the account to the trust. Other states differ.

Common questions