Amended in Senate April 20, 2016

Amended in Senate April 11, 2016

Amended in Senate September 4, 2015

Amended in Senate July 1, 2015

Amended in Assembly April 30, 2015

Amended in Assembly April 20, 2015

Amended in Assembly April 14, 2015

Amended in Assembly March 23, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 691


Introduced by Assembly Member Calderon

(Coauthors: Assembly Members Travis Allen, Chang, Chávez, Chu, Dababneh, Cristina Garcia, Gatto, Gonzalez, Steinorth, and Waldron)

February 25, 2015


An act to add Part 20 (commencing with Section 870) to Division 2 of the Probate Code, relating to estates.

LEGISLATIVE COUNSEL’S DIGEST

AB 691, as amended, Calderon. Revised Uniform Fiduciary Access to Digital Assets Act.

Existing law provides for the disposition of a testator’s property by will. Existing law also provides for the disposition of that portion of a decedent’s estate not disposed of by will. Existing law provides that the decedent’s property, including property devised by a will, is generally subject to probate administration, except as specified.

This bill would enact the Revised Uniform Fiduciary Access to Digital Assets Act, which would authorize a decedent’s personal representative or trustee to access and manage digital assets and electronic communications, as specified. The bill would authorize a person to use an online tool to give directions to the custodian of his or her digital assets regarding the disclosure of those assets. The bill would specify that, if a person has not used an online tool to give that direction, he or she may give direction regarding the disclosure of digital assets in a will, trust, power of attorney, or other record. The bill would require a custodian of the digital assets to comply with a fiduciary’s request for disclosure of digital assets or to terminate an account, except under certain circumstances, including when the decedent has prohibited this disclosure using the online tool. The bill would make custodians immune from liability for an act or omission done in good faith in compliance with these provisions.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Part 20 (commencing with Section 870) is added
2to Division 2 of the Probate Code, to read:

3 

4PART 20.  Revised Uniform Fiduciary Access to
5Digital Assets Act

6

 

7

870.  

This part shall be known, and may be cited, as the Revised
8Uniform Fiduciary Access to Digital Assets Act.

9

871.  

As used in this part, the following terms shall have the
10following meanings:

11(a) “Account” means an arrangement under a terms-of-service
12agreement in which the custodian carries, maintains, processes,
13receives, or stores a digital asset of the user or provides goods or
14services to the user.

15(b) “Carries” means engages in the transmission of electronic
16communications.

17(c) “Catalogue of electronic communications” means
18information that identifies each person with which a user has had
P3    1an electronic communication, the time and date of the
2communication, and the electronic address of the person.

3(d) “Content of an electronic communication” means
4information concerning the substance or meaning of the
5communication, which meets all of the following requirements:

6(1) Has been sent or received by a user.

7(2) Is in electronic storage by a custodian providing an electronic
8communication service to the public or is carried or maintained
9by a custodian providing a remote-computing service to the public.

10(3) Is not readily accessible to the public.

11(e) “Court” means the superior court presiding over the judicial
12proceedings which have been initiated under this code to administer
13 the estate of the deceased user, or, if none, the superior court sitting
14in the exercise of jurisdiction under this code in the county of the
15user’s domicile, and the court, as defined in this section, shall have
16exclusive jurisdiction over proceedings brought under this part.

17(f) “Custodian” means a person that carries, maintains,
18processes, receives, or stores a digital asset of a user.

19(g) “Designated recipient” means a person chosen by a user
20using an online tool to administer digital assets of the user.

21(h) “Digital asset” means an electronic record in which an
22individual has a right or interest. The term “digital asset” does not
23include an underlying asset or liability, unless the asset or liability
24is itself an electronic record.

25(i) “Electronic” means relating to technology having electrical,
26digital, magnetic, wireless, optical, electromagnetic, or similar
27 capabilities.

28(j) “Electronic communication” has the same meaning as the
29definition in Section 2510(12) of Title 18 of the United States
30Code.

31(k) “Electronic communication service” means a custodian that
32provides to a user the ability to send or receive an electronic
33communication.

34(l) “Fiduciary” means an original, additional, or successor
35personal representative or trustee.

36(m) “Information” means data, text, images, videos, sounds,
37codes, computer programs, software, databases, or other items
38with like characteristics.

39(n) “Online tool” means an electronic service provided by a
40custodian that allows the user, in an agreement distinct from the
P4    1terms-of-service agreement between the custodian and user, to
2provide directions for disclosure or nondisclosure of digital assets
3to a third person.

4(o) “Person” means an individual, estate, business or nonprofit
5entity, public corporation, government or governmental
6subdivision, agency, or instrumentality, or other legal entity.

7(p) “Personal representative” means an executor, administrator,
8special administrator, or person that performs substantially the
9same function under any other law.

10(q) “Power of attorney” means a record that grants an agent
11authority to act in the place of the principal.

12(r) “Record” means information that is inscribed on a tangible
13medium or that is stored in an electronic or other medium and is
14retrievable in a perceivable form.

15(s) “Remote-computing service” means a custodian that provides
16to a user computer processing services or the storage of digital
17assets by means of an electronic communications system, as
18defined in Section 2510(4) of Title 18 of the United States Code.

19(t) “Terms-of-service agreement” means an agreement that
20controls the relationship between a user and a custodian.

21(u) “Trustee” means a fiduciary with legal title to property under
22an agreement or declaration that creates a beneficial interest in
23another. The term includes a successor trustee.

24(v) “User” means a person that has an account with a custodian.

25(w) “Will” includes a codicil, a testamentary instrument that
26only appoints an executor, or an instrument that revokes or revises
27a testamentary instrument.

28

872.  

(a) This part shall apply to any of the following:

29(1) A fiduciary acting under a will executed before, on, or after
30January 1, 2017.

31(2) A personal representative acting for a decedent who died
32before, on, or after January 1, 2017.

33(3) A trustee acting under a trust created before, on, or after
34January 1, 2017.

35(4) A custodian of digital assets for a user if the user resides in
36this state or resided in this state at the time of the user’s death.

37(b) This part shall not apply to a digital asset of an employer
38used by an employee in the ordinary course of the employer’s
39business.

P5    1

873.  

(a) A user may use an online tool to direct the custodian
2to disclose to a designated recipient or not disclose some or all of
3the user’s digital assets, including the content of electronic
4communications. If the online tool allows the user to modify or
5delete a direction at all times, a direction regarding disclosure using
6an online tool overrides a contrary direction by the user in a will,
7trust, power of attorney, or other record.

8(b) If a user has not used an online tool to give direction under
9subdivision (a) or if a custodian has not provided an online tool,
10a user may allow or prohibit in a will, trust, power of attorney, or
11other record the disclosure to a fiduciary of some or all of the user’s
12digital assets, including the contents of electronic communications
13sent or received by the user.

14(c) A user’s direction under subdivision (a) or (b) overrides a
15contrary provision in a terms-of-service agreement that does not
16require the user to act affirmatively and distinctly from the user’s
17assent to the terms-of-service agreement.

18

874.  

(a) This part does not change or impair a right of a
19custodian or a user under a terms-of-service agreement to access
20and use digital assets of a user.

21(b) This part does not give a fiduciary or designated recipient
22any new or expanded rights other than those held by the user for
23whom, or for whose estate or trust, the fiduciary or designated
24recipient acts or represents.

25(c) A fiduciary’s or designated recipient’s access to digital assets
26may be modified or eliminated by a user, by federal law, or by a
27terms-of-service agreement when the user has not provided any
28direction that is recognized in Section 873.

29

875.  

(a) When disclosing the digital assets of a user under this
30part, the custodian may, in its sole discretion, do any of the
31following:

32(1) Grant the fiduciary or designated recipient full access to the
33user’s account.

34(2) Grant the fiduciary or designated recipient partial access to
35the user’s account sufficient to perform the tasks with which the
36fiduciary or designated recipient is charged.

37(3) Provide the fiduciary or designated recipient with a copy in
38a record of any digital asset that, on the date the custodian received
39the request for disclosure, the user could have accessed if the user
40were alive and had full capacity and access to the account.

P6    1(b) A custodian may assess a reasonable administrative charge
2for the cost of disclosing digital assets under this part.

3(c) A custodian need not disclose under this part a digital asset
4deleted by a user.

5(d) If a user directs or a fiduciary or designated recipient requests
6a custodian to disclose under this part some, but not all, of the
7user’s digital assets, the custodian need not disclose the assets if
8segregation of the assets would impose an undue burden on the
9custodian. If the custodian believes the direction or request imposes
10an undue burden, the custodian, fiduciary, or designated recipient
11 may petition the court for an order to do any of the following:

12(1) Disclose a subset limited by date of the user’s digital assets.

13(2) Disclose all of the user’s digital assets to the fiduciary or
14designated recipient.

15(3) Disclose none of the user’s digital assets.

16(4) Disclose all of the user’s digital assets to the court for review
17in camera.

18

876.  

If a deceased user consented to or a court directs disclosure
19of the content of electronic communications of the user, the
20custodian shall disclose to the personal representative of the estate
21of the user the content of an electronic communication sent or
22received by the user if the personal representative gives to the
23custodian all of the following:

24(a) A written request for disclosure in physical or electronic
25form.

26(b) A certified copy of the death certificate of the user.

27(c) A certified copy of the letter of appointment of the
28representative, a small-estate affidavit under Section 13101, or
29court order.

30(d) Unless the user provided direction using an online tool, a
31copy of the user’s will, trust, power of attorney, or other record
32evidencing the user’s consent to disclosure of the content of
33electronic communications.

34(e) If requested by the custodian, any of the following:

35(1) A number, user name, address, or other unique subscriber
36or account identifier assigned by the custodian to identify the user’s
37account.

38(2) Evidence linking the account to the user.

39(3) An order of the court finding any of the following:

P7    1(A) That the user had a specific account with the custodian,
2identifiable by the information specified in paragraph (1).

3(B) That disclosure of the content of the user’s electronic
4communications would not violatebegin delete Section 2701 et seq.end deletebegin insert Chapter
5121 (commencing with Section 2701) of Part 1end insert
of Title 18 of, and
6Section 222 of Title 47 of, the United State Code, or other
7applicable law.

8(C) Unless the user provided direction using an online tool, that
9the user consented to disclosure of the content of electronic
10communications.

11(D) That disclosure of the content of electronic communications
12of a user is reasonably necessary for estate administration.

13

877.  

Unless the user prohibited disclosure of digital assets or
14the court directs otherwise, a custodian shall disclose to the
15personal representative of the estate of a deceased user a catalogue
16of electronic communications sent or received by the user and
17digital assets, other than the content of electronic communications,
18of the user, if the personal representative gives to the custodian all
19of the following:

20(a) A written request for disclosure in physical or electronic
21form.

22(b) A certified copy of the death certificate of the user.

23(c) A certified copy of the letter of appointment of the
24representative, a small-estate affidavit under Section 13101, or
25court order.

26(d) If requested by the custodian, any of the following:

27(1) A number, user name, address, or other unique subscriber
28or account identifier assigned by the custodian to identify the user’s
29account.

30(2) Evidence linking the account to the user.

31(3) An affidavit stating that disclosure of the user’s digital assets
32is reasonably necessary for estate administration.

33(4) An order of the court finding either of the following:

34(A) That the user had a specific account with the custodian,
35identifiable by the information specified in paragraph (1).

36(B) That disclosure of the user’s digital assets is reasonably
37necessary for estate administration.

38

878.  

Unless otherwise ordered by the court, directed by the
39user, or provided in a trust, a custodian shall disclose to a trustee
40that is not an original user of an account the content of an electronic
P8    1communication sent or received by an original or successor user
2and carried, maintained, processed, received, or stored by the
3custodian in the account of the trust if the trustee gives to the
4custodian all of the following:

5(a) A written request for disclosure in physical or electronic
6form.

7(b) A certified copy of the death certificate of the settlor.

8(c) A certified copy of the trust instrument, or a certification of
9trust under Section 18100.5, evidencing the settlor’s consent to
10disclosure of the content of electronic communications to the
11trustee.

12(d) A certification by the trustee, under penalty of perjury, that
13the trust exists and that the trustee is a currently acting trustee of
14the trust.

15(e) If requested by the custodian, any of the following:

16(1) A number, username, address, or other unique subscriber or
17account identifier assigned by the custodian to identify the trust’s
18account.

19(2) Evidence linking the account to the trust.

20

879.  

Unless otherwise ordered by the court, directed by the
21user, or provided in a trust, a custodian shall disclose, to a trustee
22that is not an original user of an account, the catalogue of electronic
23communications sent or received by an original or successor user
24and stored, carried, or maintained by the custodian in an account
25of the trust and any digital assets, other than the content of
26electronic communications, in which the trust has a right or interest
27if the settlor of the trust is deceased and the trustee gives the
28custodian all of the following:

29(a) A written request for disclosure in physical or electronic
30form.

31(b) A certified copy of the death certificate of the settlor.

32(c) A certified copy of the trust instrument or a certification of
33trust under Section 18100.5.

34(d) A certification by the trustee, under penalty of perjury, that
35the trust exists and that the trustee is a currently acting trustee of
36the trust.

37(e) If requested by the custodian, any of the following:

38(1) A number, username, address, or other unique subscriber or
39account identifier assigned by the custodian to identify the trust’s
40account.

P9    1(2) Evidence linking the account to the trust.

2

880.  

(a) The legal duties imposed on a fiduciary charged with
3managing tangible property apply to the management of digital
4assets, including all of the following:

5(1) The duty of care.

6(2) The duty of loyalty.

7(3) The duty of confidentiality.

8(b) All of the following shall apply to a fiduciary’s or designated
9recipient’s authority with respect to a digital asset of a user:

10(1) Except as otherwise provided in Section 873, a fiduciary’s
11or designated recipient’s authority is subject to the applicable
12terms-of-service agreement.

13(2) A fiduciary’s or designated recipient’s authority is subject
14to other applicable law, including copyright law.

15(3) In the case of a fiduciary, a fiduciary’s authority is limited
16by the scope of the fiduciary’s duties.

17(4) A fiduciary’s or designated recipient’s authority may not be
18used to impersonate the user.

19(c) A fiduciary with authority over the property of a decedent
20or settlor has the right of access to any digital asset in which the
21decedent or settlor had a right or interest and that is not held by a
22custodian or subject to a terms-of-service agreement.

23(d) A fiduciary acting within the scope of the fiduciary’s duties
24is an authorized user of the property of the decedent or settlor for
25the purpose of applicable computer-fraud and
26unauthorized-computer-access laws.

27(e) The following shall apply to a fiduciary with authority over
28the tangible, personal property of a decedent or settlor:

29(1) The fiduciary has the right to access the property and any
30digital asset stored in it.

31(2) The fiduciary is an authorized user for purposes of any
32applicable computer-fraud and unauthorized-computer-access
33laws.

34(f) A custodian may disclose information in an account to a
35fiduciary of the decedent or settlor when the information is required
36to terminate an account used to access digital assets licensed to
37the user.

38(g) A fiduciary of a decedent or settlor may request a custodian
39to terminate the user’s account. A request for termination shall be
P10   1in writing, in either physical or electronic form, and accompanied
2by all of the following:

3(1) If the user is deceased, a certified copy of the death
4certificate of the user.

5(2) A certified copy of the letter of appointment of the
6representative, a small-estate affidavit under Section 13101, a court
7order, a certified copy of the trust instrument or a certification of
8the trust under Section 18100.5 giving the fiduciary authority over
9the account.

10(3) If requested by the custodian, any of the following:

11(A) A number, user name, address, or other unique subscriber
12or account identifier assigned by the custodian to identify the user’s
13 account.

14(B) Evidence linking the account to the user.

15(C) A finding by the court that the user had a specific account
16with the custodian, identifiable by the information specified in
17subparagraph (A).

18

881.  

(a) Not later than 60 days after receipt of the information
19required underbegin delete Sectionsend deletebegin insert Sectionend insert 876 to Section 879, inclusive, a
20custodian shall comply with a request under this part from a
21fiduciary or designated recipient to disclose digital assets or
22terminate an account. If the custodian fails to comply with a
23request, the fiduciary or designated recipient may apply to the
24court for an order directing compliance.

25(b) An order under subdivision (a) directing compliance shall
26contain a finding that compliance is not in violation of Section
272702 of Title 18 of the United States Code.

28(c) A custodian may notify a user that a request for disclosure
29of digital assets or to terminate an account was made pursuant to
30this part.

31(d) A custodian may deny a request under this part from a
32fiduciary or designated recipient for disclosure of digital assets or
33to terminate an account if the custodian is aware of any lawful
34access to the account following the date of death of the user.

35(e) This part does not limit a custodian’s ability to obtain or to
36require a fiduciary or designated recipient requesting disclosure
37or account termination under this part to obtain a court order that
38makes all of the following findings:

39(1) The account belongs to the decedent, principal, orbegin delete settlor.end delete
40
begin insert trustee.end insert

P11   1(2) There is sufficient consent from the decedent, principal, or
2settlor to support the requested disclosure.

3(3) Any specific factual finding required by any other applicable
4law in effect at that time, including, but not limited to, a finding
5that disclosure is not in violation of Section 2702 of Title 18 of
6the Untied States Code.

7(f) A custodian and its officers, employees, and agents are
8immune from liability for an act or omission done in good faith in
9compliance with this part.

10

882.  

In applying and construing this part, which is based upon
11a uniform act, consideration shall be given to the need to promote
12uniformity of the law with respect to its subject matter among
13states that enact similar acts.

14

883.  

This part modifies, limits, or supersedes the federal
15Electronic Signatures in Global and National Commerce Act (15
16U.S.C. Sec. 7001 et seq.), but does not modify, limit, or supersede
17Section 101(c) of that act (15 U.S.C. Sec. 7001(c)) or authorize
18electronic delivery of any of the notices described in Section 103(b)
19of that act (15 U.S.C. Sec. 7003(b)).

20

884.  

Disclosure of the contents of the deceased user’s or
21settlor’s account to a fiduciary of the deceased user or settlor is
22subject to the same license, restrictions, terms of service, and legal
23obligations, including copyright law, that applied to the deceased
24user or settlor.

25

885.  

If any provision of this part or its application to any person
26or circumstance is held invalid, the invalidity does not affect other
27provisions or applications of this part that can be given effect
28without the invalid provision or application, and, to this end, the
29provisions of this part are severable.



O

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