1     
UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS

2     
ACT

3     
2016 GENERAL SESSION

4     
STATE OF UTAH

5     
Chief Sponsor: V. Lowry Snow

6     
Senate Sponsor: Lyle W. Hillyard

7     

8     LONG TITLE
9     General Description:
10          This bill creates a new chapter within the Utah Uniform Probate Code addressing
11     access to digital assets when a person is incapacitated.
12     Highlighted Provisions:
13          This bill:
14          ▸     defines terms;
15          ▸     specifies who has access to the digital assets of an incapacitated or deceased person;
16          ▸     sets out responsibilities for agents and fiduciaries with access to a person's digital
17     assets; and
18          ▸     provides for the responsibilities of the custodian of a digital asset upon request of an
19     agent or fiduciary.
20     Money Appropriated in this Bill:
21          None
22     Other Special Clauses:
23          None
24     Utah Code Sections Affected:
25     ENACTS:
26          75-9-101, Utah Code Annotated 1953
27          75-9-102, Utah Code Annotated 1953

28          75-9-103, Utah Code Annotated 1953
29          75-9-104, Utah Code Annotated 1953
30          75-9-105, Utah Code Annotated 1953
31          75-9-106, Utah Code Annotated 1953
32          75-9-107, Utah Code Annotated 1953
33          75-9-108, Utah Code Annotated 1953
34          75-9-109, Utah Code Annotated 1953
35          75-9-110, Utah Code Annotated 1953
36          75-9-111, Utah Code Annotated 1953
37          75-9-112, Utah Code Annotated 1953
38          75-9-113, Utah Code Annotated 1953
39          75-9-114, Utah Code Annotated 1953
40          75-9-115, Utah Code Annotated 1953
41          75-9-116, Utah Code Annotated 1953
42          75-9-117, Utah Code Annotated 1953
43          75-9-118, Utah Code Annotated 1953
44     

45     Be it enacted by the Legislature of the state of Utah:
46          Section 1. Section 75-9-101 is enacted to read:
47     
CHAPTER 9. UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT

48          75-9-101. Title.
49          This chapter is known as the Uniform Fiduciary Access to Digital Assets Act.
50          Section 2. Section 75-9-102 is enacted to read:
51          75-9-102. Definitions.
52          As used in this chapter:
53          (1) "Account" means an arrangement under a terms of service agreement in which a
54     custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides
55     goods or services to the user.
56          (2) "Agent" means an attorney in fact granted authority under a durable or nondurable
57     power of attorney.
58          (3) "Carries" means engages in the transmission of an electronic communication.

59          (4) "Catalogue of electronic communications" means information that identifies each
60     person with which a user has had an electronic communication, the time and date of the
61     communication, and the electronic address of the person.
62          (5) "Conservator" means a person appointed by a court to manage the estate of a living
63     individual. The term includes a limited conservator.
64          (6) "Content of an electronic communication" means information concerning the
65     substance or meaning of the communication that:
66          (a) has been sent or received by a user;
67          (b) is in electronic storage by a custodian providing an electronic communication
68     service to the public or is carried or maintained by a custodian providing a remote computing
69     service to the public; and
70          (c) is not readily accessible to the public.
71          (7) "Court" means the district court.
72          (8) "Custodian" means a person that carries, maintains, processes, receives, or stores a
73     digital asset of a user.
74          (9) "Designated recipient" means a person chosen by a user using an online tool to
75     administer digital assets of the user.
76          (10) "Digital asset" means an electronic record in which an individual has a right or
77     interest. The term does not include an underlying asset or liability unless the asset or liability is
78     itself an electronic record.
79          (11) "Electronic" means relating to technology having electrical, digital, magnetic,
80     wireless, optical, electromagnetic, or similar capabilities.
81          (12) "Electronic communication" has the same meaning as the definition in 18 U.S.C.
82     Sec. 2510(12).
83          (13) "Electronic communication service" means a custodian that provides to a user the
84     ability to send or receive an electronic communication.
85          (14) "Fiduciary" means an original, additional, or successor personal representative,
86     conservator, agent, or trustee.
87          (15) "Information" means data, text, images, videos, sounds, codes, computer
88     programs, software, databases, or the like.
89          (16) "Online tool" means an electronic service provided by a custodian that allows the

90     user, in an agreement distinct from the terms of service agreement between the custodian and
91     user, to provide directions for disclosure or nondisclosure of digital assets to a third person.
92          (17) "Person" means an individual, estate, business or nonprofit entity, public
93     corporation, government or governmental subdivision, agency, instrumentality, or other legal
94     entity.
95          (18) "Personal representative" means an executor, administrator, special administrator,
96     or person that performs substantially the same function under the law of this state other than
97     this chapter.
98          (19) "Power of attorney" means a record that grants an agent authority to act in the
99     place of a principal.
100          (20) "Principal" means an individual who grants authority to an agent in a power of
101     attorney.
102          (21) "Protected person" means an individual for whom a conservator has been
103     appointed. The term includes an individual for whom an application for the appointment of a
104     conservator is pending.
105          (22) "Record" means information that is inscribed on a tangible medium or that is
106     stored in an electronic or other medium and is retrievable in perceivable form.
107          (23) "Remote computing service" means a custodian that provides to a user computer
108     processing services or the storage of digital assets by means of an electronic communications
109     system, as defined in 18 U.S.C. Sec. 2510(14).
110          (24) "Terms of service agreement" means an agreement that controls the relationship
111     between a user and a custodian.
112          (25) "Trustee" means a fiduciary with legal title to property pursuant to an agreement
113     or declaration that creates a beneficial interest in another. The term includes a successor
114     trustee.
115          (26) "User" means a person that has an account with a custodian.
116          (27) "Will" includes a codicil, a testamentary instrument that only appoints an
117     executor, and an instrument that revokes or revises a testamentary instrument.
118          Section 3. Section 75-9-103 is enacted to read:
119          75-9-103. Applicability.
120          (1) This chapter applies to:

121          (a) a fiduciary or agent acting under a will or power of attorney executed before, on, or
122     after May 10, 2016;
123          (b) a personal representative acting for a decedent who died before, on, or after May
124     10, 2016;
125          (c) a conservatorship proceeding commenced before, on, or after May 10, 2016; and
126          (d) a trustee acting under a trust created before, on, or after May 10, 2016.
127          (2) This chapter applies to a custodian if the user resides in this state or resided in this
128     state at the time of the user's death.
129          (3) This chapter does not apply to a digital asset of an employer used by an employee
130     in the ordinary course of the employer's business.
131          Section 4. Section 75-9-104 is enacted to read:
132          75-9-104. User direction for disclosure of digital assets.
133          (1) A user may use an online tool to direct the custodian to disclose or not to disclose
134     to a designated recipient some or all of the user's digital assets, including the content of
135     electronic communications. If the online tool allows the user to modify or delete a direction at
136     all times, a direction regarding disclosure using an online tool overrides a contrary direction by
137     the user in a will, trust, power of attorney, or other record.
138          (2) If a user has not used an online tool to give direction under Subsection (1) or if the
139     custodian has not provided an online tool, the user may allow or prohibit in a will, trust, power
140     of attorney, or other record disclosure to a fiduciary of some or all of the user's digital assets,
141     including the content of electronic communications sent or received by the user.
142          (3) A user's direction under Subsection (1) or (2) overrides a contrary provision in a
143     terms-of-service agreement that does not require the user to act affirmatively and distinctly
144     from the user's assent to the terms of service.
145          Section 5. Section 75-9-105 is enacted to read:
146          75-9-105. Terms-of-service agreement.
147          (1) This chapter does not change or impair a right of a custodian or a user under a
148     terms of service agreement to access and use digital assets of the user.
149          (2) This chapter does not give a fiduciary or designated recipient any new or expanded
150     rights other than those held by the user for whom, or for whose estate, the fiduciary or
151     designated recipient acts or represents.

152          (3) A fiduciary's or designated recipient's access to digital assets may be modified or
153     eliminated by a user, by federal law, or by a terms-of-service agreement if the user has not
154     provided direction under Section 75-9-104.
155          Section 6. Section 75-9-106 is enacted to read:
156          75-9-106. Procedure for disclosing digital assets.
157          (1) When disclosing digital assets of a user under this chapter, the custodian may at the
158     custodian's sole discretion:
159          (a) grant a fiduciary or designated recipient full access to the user's account;
160          (b) grant a fiduciary or designated recipient partial access to the user's account
161     sufficient to perform the tasks with which the fiduciary or designated recipient is charged; or
162          (c) provide a fiduciary or designated recipient a copy in a record of any digital asset
163     that, on the date the custodian received the request for disclosure, the user could have accessed
164     if the user were alive and had full capacity and access to the account.
165          (2) A custodian may assess a reasonable administrative charge for the cost of
166     disclosing digital assets under this chapter.
167          (3) A custodian need not disclose under this chapter a digital asset deleted by a user.
168          (4) If a user directs or a fiduciary requests a custodian to disclose under this chapter
169     some, but not all, of the user's digital assets, the custodian need not disclose the assets if
170     segregation of the assets would impose an undue burden on the custodian. If the custodian
171     believes the direction or request imposes an undue burden, the custodian or fiduciary may seek
172     an order from the court to disclose:
173          (a) a subset limited by date of the user's digital assets;
174          (b) all of the user's digital assets to the fiduciary or designated recipient;
175          (c) none of the user's digital assets; or
176          (d) all of the user's digital assets to the court for review in camera.
177          Section 7. Section 75-9-107 is enacted to read:
178          75-9-107. Disclosure of content of electronic communications of deceased user.
179          If a deceased user consented to or a court directs disclosure of the contents of electronic
180     communications of the user, the custodian shall disclose to the personal representative of the
181     estate of the user the content of an electronic communication sent or received by the user if the
182     representative gives the custodian:

183          (1) a written request for disclosure in physical or electronic form;
184          (2) a certified copy of the death certificate of the user;
185          (3) a certified copy of the letter of appointment of the representative or a small estate
186     affidavit or court order;
187          (4) unless the user provided direction using an online tool, a copy of the user's will,
188     trust, power of attorney, or other record evidencing the user's consent to disclosure of the
189     content of electronic communications; and
190          (5) if requested by the custodian:
191          (a) a number, username, address, or other unique subscriber or account identifier
192     assigned by the custodian to identify the user's account;
193          (b) evidence linking the account to the user; or
194          (c) a finding by the court that:
195          (i) the user had a specific account with the custodian, identifiable by the information
196     specified in Subsection (5)(a);
197          (ii) disclosure of the content of electronic communications of the user would not
198     violate 18 U.S.C. Sec. 2701 et seq., 47 U.S.C. Sec. 222, or other applicable law;
199          (iii) unless the user provided direction using an online tool, the user consented to
200     disclosure of the content of electronic communications; or
201          (iv) disclosure of the content of electronic communications of the user is reasonably
202     necessary for administration of the estate.
203          Section 8. Section 75-9-108 is enacted to read:
204          75-9-108. Disclosure of other digital assets of deceased user.
205          Unless the user prohibited disclosure of digital assets or the court directs otherwise, a
206     custodian shall disclose to the personal representative of the estate of a deceased user a
207     catalogue of electronic communications sent or received by the user and digital assets, other
208     than the content of electronic communications, of the user, if the representative gives the
209     custodian:
210          (1) a written request for disclosure in physical or electronic form;
211          (2) a certified copy of the death certificate of the user;
212          (3) a certified copy of the letter of appointment of the representative, a small estate
213     affidavit, or court order; and

214          (4) if requested by the custodian:
215          (a) a number, username, address, or other unique subscriber or account identifier
216     assigned by the custodian to identify the user's account;
217          (b) evidence linking the account to the user;
218          (c) an affidavit stating that disclosure of the user's digital assets is reasonably necessary
219     for administration of the estate; or
220          (d) a finding by the court that:
221          (i) the user had a specific account with the custodian, identifiable by the information
222     specified in Subsection (4)(a); or
223          (ii) disclosure of the user's digital assets is reasonably necessary for administration of
224     the estate.
225          Section 9. Section 75-9-109 is enacted to read:
226          75-9-109. Disclosure of content of electronic communications of principal.
227          To the extent a power of attorney expressly grants an agent authority over the content of
228     electronic communications sent or received by the principal and unless directed otherwise by
229     the principal or the court, a custodian shall disclose to the agent the content if the agent gives
230     the custodian:
231          (1) a written request for disclosure in physical or electronic form;
232          (2) an original or copy of the power of attorney expressly granting the agent authority
233     over the content of electronic communications of the principal;
234          (3) a certification by the agent, under penalty of perjury, that the power of attorney is in
235     effect; and
236          (4) if requested by the custodian:
237          (a) a number, username, address, or other unique subscriber or account identifier
238     assigned by the custodian to identify the principal's account; or
239          (b) evidence linking the account to the principal.
240          Section 10. Section 75-9-110 is enacted to read:
241          75-9-110. Disclosure of other digital assets of principal.
242          Unless otherwise ordered by the court, directed by the principal, or provided by a power
243     of attorney, a custodian shall disclose to an agent with specific authority over digital assets, or
244     general authority to act on behalf of a principal, a catalogue of electronic communications sent

245     or received by the principal and digital assets, other than the content of electronic
246     communications, of the principal if the agent gives the custodian:
247          (1) a written request for disclosure in physical or electronic form;
248          (2) an original or a copy of the power of attorney that gives the agent specific authority
249     over digital assets or general authority to act on behalf of the principal;
250          (3) a certification by the agent, under penalty of perjury, that the power of attorney is in
251     effect; and
252          (4) if requested by the custodian:
253          (a) a number, username, address, or other unique subscriber or account identifier
254     assigned by the custodian to identify the principal's account; or
255          (b) evidence linking the account to the principal.
256          Section 11. Section 75-9-111 is enacted to read:
257          75-9-111. Disclosure of digital assets held in trust when trustee is original user.
258          Unless otherwise ordered by the court or provided in a trust, a custodian shall disclose
259     to a trustee that is an original user of an account any digital asset of the account held in trust,
260     including a catalogue of electronic communications of the trustee and the content of electronic
261     communications.
262          Section 12. Section 75-9-112 is enacted to read:
263          75-9-112. Disclosure of contents of electronic communications held in trust when
264     trustee not original user.
265          Unless otherwise ordered by the court, directed by the user, or provided in a trust, a
266     custodian shall disclose to a trustee that is not an original user of an account the content of an
267     electronic communication sent or received by an original or successor user and carried,
268     maintained, processed, received, or stored by the custodian in the account of the trust if the
269     trustee gives the custodian:
270          (1) a written request for disclosure in physical or electronic form;
271          (2) a certified copy of the trust instrument or a certification of the trust under Section
272     75-7-1013 that includes consent to disclosure of the content of electronic communications to
273     the trustee;
274          (3) a certification by the trustee, under penalty of perjury, that the trust exists and the
275     trustee is a currently acting trustee of the trust; and

276          (4) if requested by the custodian:
277          (a) a number, username, address, or other unique subscriber or account identifier
278     assigned by the custodian to identify the trust's account; or
279          (b) evidence linking the account to the trust.
280          Section 13. Section 75-9-113 is enacted to read:
281          75-9-113. Disclosure of other digital assets held in trust when trustee not original
282     user.
283          Unless otherwise ordered by the court, directed by the user, or provided in a trust, a
284     custodian shall disclose, to a trustee that is not an original user of an account, a catalogue of
285     electronic communications sent or received by an original or successor user and stored, carried,
286     or maintained by the custodian in an account of the trust and any digital assets, other than the
287     content of electronic communications, in which the trust has a right or interest if the trustee
288     gives the custodian:
289          (1) a written request for disclosure in physical or electronic form;
290          (2) a certified copy of the trust instrument or a certification of the trust under Section
291     75-7-1013;
292          (3) a certification by the trustee, under penalty of perjury, that the trust exists and the
293     trustee is a currently acting trustee of the trust; and
294          (4) if requested by the custodian:
295          (a) a number, username, address, or other unique subscriber or account identifier
296     assigned by the custodian to identify the trust's account; or
297          (b) evidence linking the account to the trust.
298          Section 14. Section 75-9-114 is enacted to read:
299          75-9-114. Disclosure of digital assets to conservator of protected person.
300          (1) After an opportunity for a hearing under Chapter 5b, Uniform Adult Guardianship
301     and Protective Proceedings Jurisdiction Act, the court may grant a conservator access to the
302     digital assets of a protected person.
303          (2) Unless otherwise ordered by the court or directed by the user, a custodian shall
304     disclose to a conservator the catalogue of electronic communications sent or received by a
305     protected person and any digital assets, other than the content of electronic communications, in
306     which the protected person has a right or interest if the conservator gives the custodian:

307          (a) a written request for disclosure in physical or electronic form;
308          (b) a certified copy of the court order that gives the conservator authority over the
309     digital assets of the protected person; and
310          (c) if requested by the custodian:
311          (i) a number, username, address, or other unique subscriber or account identifier
312     assigned by the custodian to identify the account of the protected person; or
313          (ii) evidence linking the account to the protected person.
314          (3) A conservator with general authority to manage the assets of a protected person
315     may request a custodian of the digital assets of the protected person to suspend or terminate an
316     account of the protected person for good cause. A request made under this section must be
317     accompanied by a certified copy of the court order giving the conservator authority over the
318     protected person's property.
319          Section 15. Section 75-9-115 is enacted to read:
320          75-9-115. Fiduciary duty and authority.
321          (1) The legal duties imposed on a fiduciary charged with managing tangible property
322     apply to the management of digital assets, including:
323          (a) the duty of care;
324          (b) the duty of loyalty; and
325          (c) the duty of confidentiality.
326          (2) A fiduciary's or designated recipient's authority with respect to a digital asset of a
327     user:
328          (a) except as otherwise provided in Section 75-9-104, is subject to the applicable terms
329     of service;
330          (b) is subject to other applicable law, including copyright law;
331          (c) in the case of a fiduciary, is limited by the scope of the fiduciary's duties; and
332          (d) may not be used to impersonate the user.
333          (3) A fiduciary with authority over the property of a decedent, protected person,
334     principal, or settlor has the right to access any digital asset in which the decedent, protected
335     person, principal, or settlor had a right or interest and that is not held by a custodian or subject
336     to a terms-of-service agreement.
337          (4) A fiduciary acting within the scope of the fiduciary's duties is an authorized user of

338     the property of the decedent, protected person, principal, or settlor for the purpose of applicable
339     computer fraud and unauthorized computer access laws.
340          (5) A fiduciary with authority over the tangible, personal property of a decedent,
341     protected person, principal, or settlor:
342          (a) has the right to access the property and any digital asset stored in it; and
343          (b) is an authorized user for the purpose of computer fraud and unauthorized computer
344     access laws.
345          (6) A custodian may disclose information in an account to a fiduciary of the user when
346     the information is required to terminate an account used to access digital assets licensed to the
347     user.
348          (7) A fiduciary of a user may request a custodian to terminate the user's account. A
349     request for termination shall be in writing, in either physical or electronic form, and
350     accompanied by:
351          (a) if the user is deceased, a certified copy of the death certificate of the user;
352          (b) a certified copy of the letter of appointment of the representative, a small estate
353     affidavit, or court order, power of attorney, or trust giving the fiduciary authority over the
354     account; and
355          (c) if requested by the custodian:
356          (i) a number, username, address, or other unique subscriber or account identifier
357     assigned by the custodian to identify the user's account;
358          (ii) evidence linking the account to the user; or
359          (iii) a finding by the court that the user had a specific account with the custodian,
360     identifiable by the information specified in Subsection (7)(c)(i).
361          Section 16. Section 75-9-116 is enacted to read:
362          75-9-116. Custodian compliance and immunity.
363          (1) Not later than 60 days after receipt of the information required under Sections
364     75-9-107 through 75-9-115, a custodian shall comply with a request under this chapter from a
365     fiduciary or designated recipient to disclose digital assets or terminate an account. If the
366     custodian fails to comply, the fiduciary or designated recipient may apply to the court for an
367     order directing compliance.
368          (2) An order under Subsection (1) directing compliance shall contain a finding that

369     compliance is not in violation of 18 U.S.C. Sec. 2702.
370          (3) A custodian may notify the user that a request for disclosure or to terminate an
371     account was made under this chapter.
372          (4) A custodian may deny a request under this chapter from a fiduciary or designated
373     recipient for disclosure of digital assets or to terminate an account if the custodian is aware of
374     any lawful access to the account following the receipt of the fiduciary's request.
375          (5) This chapter does not limit a custodian's ability to obtain or require a fiduciary or
376     designated recipient requesting disclosure or termination under this chapter to obtain a court
377     order that:
378          (a) specifies that an account belongs to the protected person or principal;
379          (b) specifies that there is sufficient consent from the protected person or principal to
380     support the requested disclosure; and
381          (c) contains a finding required by law other than this chapter.
382          (6) A custodian and its officers, employees, and agents are immune from liability for
383     an act or omission done in good faith in compliance with this chapter.
384          Section 17. Section 75-9-117 is enacted to read:
385          75-9-117. Uniformity of application and construction.
386          In applying and construing this uniform act, consideration shall be given to the need to
387     promote uniformity of the law with respect to its subject matter among states that enact it.
388          Section 18. Section 75-9-118 is enacted to read:
389          75-9-118. Relation to Electronic Signatures in Global and National Commerce
390     Act.
391          This chapter modifies, limits, or supersedes the Electronic Signatures in Global and
392     National Commerce Act, 15 U.S.C. Sec. 7001 et seq., but does not modify, limit, or supersede
393     Section 101(c) of that act or 15 U.S.C. Sec. 7001(c), or authorize electronic delivery of any of
394     the notices described in Section 103(b) of that act or 15 U.S.C. Sec. 7003(b).






Legislative Review Note
Office of Legislative Research and General Counsel