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California Fiduciary Access to Digital Assets

Allows fiduciary authority over digital assets upon the testator’s death or incapacity

By Chris Micheli, August 18, 2022 6:22 am

California has numerous formal acts in statute. Probate Code Division 2, Part 20 provides the Revised Uniform Fiduciary Access to Digital Assets Act, which is contained in Sections 870 to 884. Part 20 was added in 2016 by Chapter 551. Section 870 names the act.

Section 871 provides definitions for the following terms: “account”; “carries”; “catalogue of electronic communications”; “content of an electronic communication”; “court”; “custodian”; “designated recipient”; “digital asset”; “electronic”; “electronic communication”; “electronic communication service”; “fiduciary”; “information”; “online tool”; “person”; “personal representative”; “power of attorney”; “record”; “remote-computing service”; “terms-of-service agreement”; “trustee”; “user”; and, “will.”

Section 872 provides that this part applies to:

  • A fiduciary acting under a will executed before, on, or after January 1, 2017.
  • A personal representative acting for a decedent who died before, on, or after January 1, 2017.
  • A trustee acting under a trust created before, on, or after January 1, 2017.
  • A custodian of digital assets for a user if the user resides in this state or resided in this state at the time of the user’s death.

However, this part does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer’s business.

Section 873 states that a user may use an online tool to direct the custodian to disclose to a designated recipient or not disclose some or all of the user’s digital assets, including the content of electronic communications. If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney, or other record.

Section 874 provides that this part does not change or impair a right of a custodian or a user under a terms-of-service agreement to access and use digital assets of a user. This part does not give a fiduciary or designated recipient any new or expanded rights other than those held by the user for whom, or for whose estate or trust, the fiduciary or designated recipient acts or represents.

Section 875 provides that, when disclosing the digital assets of a user under this part, the custodian may, in its sole discretion, do specified activities. A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under this part. A custodian need not disclose under this part a digital asset deleted by a user.

Section 876 states that, if a deceased user consented to or a court directs disclosure of the content of electronic communications of the user, the custodian must disclose to the personal representative of the estate of the user the content of an electronic communication sent or received by the user if the personal representative gives to the custodian specified materials.

Section 877 provides that, unless the user prohibited disclosure of digital assets or the court directs otherwise, a custodian is required to disclose to the personal representative of the estate of a deceased user a catalogue of electronic communications sent or received by the user and digital assets, other than the content of electronic communications, of the user, if the personal representative gives to the custodian all of the specified information.

Section 878 states that, unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian is required to disclose to a trustee that is not an original user of an account the content of an electronic communication sent or received by an original or successor user and carried, maintained, processed, received, or stored by the custodian in the account of the trust if the trustee gives to the custodian all of the specified information.

Section 879 specifies that, unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian is required to disclose, to a trustee that is not an original user of an account, the catalogue of electronic communications sent or received by an original or successor user and stored, carried, or maintained by the custodian in an account of the trust and any digital assets, other than the content of electronic communications, in which the trust has a right or interest if the settlor of the trust is deceased and the trustee gives the custodian all of the specified information.

Section 880 provides that the legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including the duty of care; the duty of loyalty; and, the duty of confidentiality.

A fiduciary with authority over the property of a decedent or settlor has the right of access to any digital asset in which the decedent or settlor had a right or interest and that is not held by a custodian or subject to a terms-of-service agreement. Nothing in this subdivision requires a custodian to share passwords or decrypt protected devices.

A fiduciary acting within the scope of the fiduciary’s duties is an authorized user of the property of the decedent or settlor for the purpose of applicable computer-fraud and unauthorized-computer-access laws. Also, a custodian may disclose information in an account to a fiduciary of the decedent or settlor when the information is required to terminate an account used to access digital assets licensed to the user.

A fiduciary of a decedent or settlor may request a custodian to terminate the user’s account. A request for termination must be in writing, in either physical or electronic form, and be accompanied by all of the specified documents.

Section 882 provides that, not later than 60 days after receipt of the information required, a custodian is required to comply with a request under this part from a fiduciary or designated recipient to disclose digital assets or terminate an account. If the custodian fails to comply with a request, the fiduciary or designated recipient may apply to the court for an order directing compliance.

Section 882 states that this part modifies, limits, or supersedes specified federal laws.

Section 883 specifies that disclosure of the contents of the deceased user’s or settlor’s account to a fiduciary of the deceased user or settlor is subject to the same license, restrictions, terms of service, and legal obligations, including copyright law, that applied to the deceased user or settlor.

Section 884 provides that, if any provision of this part or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this part that can be given effect without the invalid provision or application, and, to this end, the provisions of this part are severable.

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