Amended in Senate June 14, 2016

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 Bill No. 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:

SECTION 1.  

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

 

PART 20.  Revised Uniform Fiduciary Access to
Digital Assets Act

 

870.  

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

871.  

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

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

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

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

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

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

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

(3) Is not readily accessible to the public.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(s) “Remote-computing service” means a custodian that provides
to a user computer processing services or the storage of digital
assets by means of an electronic communications system, as
defined in Section begin delete 2510(4) end delete begin insert 2510(14) end insert of Title 18 of the United
States Code.

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

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

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

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

872.  

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

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

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

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

(4) 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.

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

873.  

(a) 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.

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

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

874.  

(a) 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.

(b) 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.

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

875.  

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

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

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

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

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

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

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

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

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

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

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

876.  

If a deceased user consented to or a court directs disclosure
of the content of electronic communications of the user, the
custodian shall 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 all of the following:

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

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

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

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

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

(1) A number, begin delete user name, end delete begin insert username, end insert address, or other unique
subscriber or account identifier assigned by the custodian to
identify the user’s account.

(2) Evidence linking the account to the user.

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

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

(B) That disclosure of the content of the user’s electronic
communications would not violate Chapter 121 (commencing with
Section 2701) of Part 1 of Title 18 of, and Section 222 of Title 47
of, the United begin delete State end delete begin insert States end insert Code, or other applicable law.

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

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

877.  

Unless the user prohibited disclosure of digital assets or
the court directs otherwise, a custodian shall 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 following:

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

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

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

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

(1) A number, begin delete user name, end delete begin insert username, end insert address, or other unique
subscriber or account identifier assigned by the custodian to
identify the user’s account.

(2) Evidence linking the account to the user.

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

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

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

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

878.  

Unless otherwise ordered by the court, directed by the
user, or provided in a trust, a custodian shall 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 following:

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

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

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

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

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

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

(2) Evidence linking the account to the trust.

879.  

Unless otherwise ordered by the court, directed by the
user, or provided in a trust, a custodian shall 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 following:

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

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

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

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

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

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

(2) Evidence linking the account to the trust.

880.  

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

(1) The duty of care.

(2) The duty of loyalty.

(3) The duty of confidentiality.

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

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

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

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

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

(c) 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. begin insert Nothing in
this subdivision requires a custodian to share passwords or decrypt
protected devices. end insert

(d) 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.

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

(1) The fiduciary has the right to access the property and any
digital asset stored in it. begin insert Nothing in this subdivision requires a
custodian to share passwords or decrypt protected devices. end insert

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

(f) 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.

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

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

(2) A certified copy of the letter of appointment of the
representative, a small-estate affidavit under Section 13101, a court
order, a certified copy of the trust begin delete instrument end delete begin insert instrument, end insert or a
certification of the trust under Section 18100.5 giving the fiduciary
authority over the account.

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

(A) A number, begin delete user name, end delete begin insert username, end insert address, or other unique
subscriber or account identifier assigned by the custodian to
identify the user’s account.

(B) Evidence linking the account to the user.

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

881.  

(a) Not later than 60 days after receipt of the information
required under begin delete Section end delete begin insert Sections end insert 876 to begin delete Section end delete 879, inclusive, a
custodian shall 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.

(b) An order under subdivision (a) directing compliance shall
contain a finding that compliance is not in violation of Section
2702 of Title 18 of the United States Code.

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

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

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

(1) The account belongs to the decedent, principal, or trustee.

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

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

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

begin delete

882.  

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

end delete

begin delete 883. end delete

begin insert 882. end insert   

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

begin delete 884. end delete

begin insert 883. end insert   

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.

begin delete 885. end delete

begin insert 884. end insert   

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.