BILL NUMBER: AB 691 CHAPTERED
BILL TEXT
CHAPTER 551
FILED WITH SECRETARY OF STATE SEPTEMBER 24, 2016
APPROVED BY GOVERNOR SEPTEMBER 24, 2016
PASSED THE SENATE AUGUST 1, 2016
PASSED THE ASSEMBLY AUGUST 25, 2016
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
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, 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.
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 2510(14) 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 agreement.
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, username, 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 States 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, username, 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. Nothing in
this subdivision requires a custodian to share passwords or decrypt
protected devices.
(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. Nothing in this subdivision requires a
custodian to share passwords or decrypt protected devices.
(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 instrument, 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, username, 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 Sections 876 to 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 United 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.
882. 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)).
883. 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.
884. 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.