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7 LONG TITLE
8 General Description:
9 This bill creates a new chapter within the Utah Uniform Probate Code addressing
10 access to digital assets when a person is incapacitated or deceased.
11 Highlighted Provisions:
12 This bill:
13 ▸ defines terms;
14 ▸ specifies who has access to the digital assets of an incapacitated or deceased person;
15 ▸ sets out responsibilities for agents and fiduciaries with access to a person's digital
16 assets; and
17 ▸ provides for the responsibilities of the custodian of a digital asset upon request of an
18 agent or fiduciary.
19 Money Appropriated in this Bill:
20 None
21 Other Special Clauses:
22 None
23 Utah Code Sections Affected:
24 ENACTS:
25 75-10-101, Utah Code Annotated 1953
26 75-10-102, Utah Code Annotated 1953
27 75-10-103, Utah Code Annotated 1953
28 75-10-104, Utah Code Annotated 1953
29 75-10-105, Utah Code Annotated 1953
30 75-10-106, Utah Code Annotated 1953
31 75-10-107, Utah Code Annotated 1953
32 75-10-108, Utah Code Annotated 1953
33 75-10-109, Utah Code Annotated 1953
34 75-10-110, Utah Code Annotated 1953
35 75-10-111, Utah Code Annotated 1953
36 75-10-112, Utah Code Annotated 1953
37 75-10-113, Utah Code Annotated 1953
38 75-10-114, Utah Code Annotated 1953
39 75-10-115, Utah Code Annotated 1953
40 75-10-116, Utah Code Annotated 1953
41 75-10-117, Utah Code Annotated 1953
42 75-10-118, Utah Code Annotated 1953
43
44 Be it enacted by the Legislature of the state of Utah:
45 Section 1. Section 75-10-101 is enacted to read:
46
47 75-10-101. Title.
48 This chapter may be cited as the "Uniform Fiduciary Access to Digital Assets Act."
49 Section 2. Section 75-10-102 is enacted to read:
50 75-10-102. Definitions.
51 As used in this chapter:
52 (1) "Account" means an arrangement under a terms of service agreement in which a
53 custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides
54 goods or services to the user.
55 (2) "Agent" means an attorney in fact granted authority under a durable or nondurable
56 power of attorney.
57 (3) "Carries" means engages in the transmission of an electronic communication.
58 (4) "Catalogue of electronic communications" means information that identifies each
59 person with which a user has had an electronic communication, the time and date of the
60 communication, and the electronic address of the person.
61 (5) (a) "Conservator" means a person appointed by a court to manage the estate of a
62 living individual.
63 (b) "Conservator" 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) (a) "Digital asset" means an electronic record in which an individual has a right or
77 interest.
78 (b) "Digital asset" does not include an underlying asset or liability unless the asset or
79 liability is itself an electronic record.
80 (11) "Electronic" means relating to technology having electrical, digital, magnetic,
81 wireless, optical, electromagnetic, or similar capabilities.
82 (12) "Electronic communication" has the same meaning as the definition in 18 U.S.C.
83 Sec. 2510(12).
84 (13) "Electronic communication service" means a custodian that provides to a user the
85 ability to send or receive an electronic communication.
86 (14) "Fiduciary" means an original, additional, or successor personal representative,
87 conservator, guardian, agent, or trustee.
88 (15) (a) "Guardian" means a person appointed by a court to manage the affairs of a
89 living individual.
90 (b) "Guardian" includes a limited guardian.
91 (16) "Information" means data, text, images, videos, sounds, codes, computer
92 programs, software, databases, or the like.
93 (17) "Online tool" means an electronic service provided by a custodian that allows the
94 user, in an agreement distinct from the terms of service agreement between the custodian and
95 user, to provide directions for disclosure or nondisclosure of digital assets to a third person.
96 (18) "Person" means an individual, estate, business or nonprofit entity, public
97 corporation, government or governmental subdivision, agency, instrumentality, or other legal
98 entity.
99 (19) "Personal representative" means an executor, administrator, special administrator,
100 or person that performs substantially the same function under the law of this state other than
101 this chapter.
102 (20) "Power of attorney" means a record that grants an agent authority to act in the
103 place of a principal.
104 (21) "Principal" means an individual who grants authority to an agent in a power of
105 attorney.
106 (22) (a) "Protected person" means an individual for whom a conservator or guardian
107 has been appointed.
108 (b) "Protected person" includes an individual for whom an application for the
109 appointment of a conservator or guardian is pending.
110 (23) "Record" means information that is inscribed on a tangible medium or that is
111 stored in an electronic or other medium and is retrievable in perceivable form.
112 (24) "Remote computing service" means a custodian that provides to a user computer
113 processing services or the storage of digital assets by means of an electronic communications
114 system, as defined in 18 U.S.C. Sec. 2510(14).
115 (25) "Terms of service agreement" means an agreement that controls the relationship
116 between a user and a custodian.
117 (26) (a) "Trustee" means a fiduciary with legal title to property pursuant to an
118 agreement or declaration that creates a beneficial interest in another.
119 (b) "Trustee" includes a successor trustee.
120 (27) "User" means a person that has an account with a custodian.
121 (28) "Will" includes a codicil, a testamentary instrument that only appoints an
122 executor, and an instrument that revokes or revises a testamentary instrument.
123 Section 3. Section 75-10-103 is enacted to read:
124 75-10-103. Applicability.
125 (1) This chapter applies to:
126 (a) a fiduciary or agent acting under a will or power of attorney executed before, on, or
127 after May 9, 2017;
128 (b) a personal representative acting for a decedent who died before, on, or after May 9,
129 2017;
130 (c) a conservatorship or guardianship proceeding commenced before, on, or after May
131 9, 2017; and
132 (d) a trustee acting under a trust created before, on, or after May 9, 2017.
133 (2) This chapter applies to a custodian if the user resides in this state or resided in this
134 state at the time of the user's death.
135 (3) This chapter does not apply to a digital asset of an employer used by an employee
136 in the ordinary course of the employer's business.
137 Section 4. Section 75-10-104 is enacted to read:
138 75-10-104. User direction for disclosure of digital assets.
139 (1) A user may use an online tool to direct the custodian to disclose or not to disclose
140 to a designated recipient some or all of the user's digital assets, including the content of
141 electronic communications. If the online tool allows the user to modify or delete a direction at
142 all times, a direction regarding disclosure using an online tool overrides a contrary direction by
143 the user in a will, trust, power of attorney, or other record.
144 (2) If a user has not used an online tool to give direction under Subsection (1) or if the
145 custodian has not provided an online tool, the user may allow or prohibit in a will, trust, power
146 of attorney, or other record disclosure to a fiduciary of some or all of the user's digital assets,
147 including the content of electronic communications sent or received by the user.
148 (3) A user's direction under Subsection (1) or (2) overrides a contrary provision in a
149 terms of service agreement that does not require the user to act affirmatively and distinctly
150 from the user's assent to the terms of service.
151 Section 5. Section 75-10-105 is enacted to read:
152 75-10-105. Terms of service agreement.
153 (1) This chapter does not change or impair a right of a custodian or a user under a
154 terms of service agreement to access and use digital assets of the user.
155 (2) This chapter does not give a fiduciary or designated recipient any new or expanded
156 rights other than those held by the user for whom, or for whose estate, the fiduciary or
157 designated recipient acts or represents.
158 (3) A fiduciary's or designated recipient's access to digital assets may be modified or
159 eliminated by a user, by federal law, or by a terms of service agreement if the user has not
160 provided direction under Section 75-10-104.
161 Section 6. Section 75-10-106 is enacted to read:
162 75-10-106. Procedure for disclosing digital assets.
163 (1) When disclosing digital assets of a user under this chapter, the custodian may at the
164 custodian's sole discretion:
165 (a) grant a fiduciary or designated recipient full access to the user's account;
166 (b) grant a fiduciary or designated recipient partial access to the user's account
167 sufficient to perform the tasks with which the fiduciary or designated recipient is charged; or
168 (c) provide a fiduciary or designated recipient a copy in a record of any digital asset
169 that, on the date the custodian received the request for disclosure, the user could have accessed
170 if the user were alive and had full capacity and access to the account.
171 (2) A custodian may assess a reasonable administrative charge for the cost of
172 disclosing digital assets under this chapter.
173 (3) A custodian need not disclose under this chapter a digital asset deleted by a user.
174 (4) If a user directs or a fiduciary requests a custodian to disclose under this chapter
175 some, but not all, of the user's digital assets, the custodian need not disclose the assets if
176 segregation of the assets would impose an undue burden on the custodian. If the custodian
177 believes the direction or request imposes an undue burden, the custodian or fiduciary may seek
178 an order from the court to disclose:
179 (a) a subset limited by date of the user's digital assets;
180 (b) all of the user's digital assets to the fiduciary or designated recipient;
181 (c) none of the user's digital assets; or
182 (d) all of the user's digital assets to the court for review in camera.
183 Section 7. Section 75-10-107 is enacted to read:
184 75-10-107. Disclosure of content of electronic communications of deceased user.
185 If a deceased user consented to or a court directs disclosure of the contents of electronic
186 communications of the user, the custodian shall disclose to the personal representative of the
187 estate of the user the content of an electronic communication sent or received by the user if the
188 representative gives the custodian:
189 (1) a written request for disclosure in physical or electronic form;
190 (2) a certified copy of the death certificate of the user;
191 (3) a certified copy of the letter of appointment of the representative or a small estate
192 affidavit or court order;
193 (4) unless the user provided direction using an online tool, a copy of the user's will,
194 trust, power of attorney, or other record evidencing the user's consent to disclosure of the
195 content of electronic communications; and
196 (5) if requested by the custodian:
197 (a) a number, username, address, or other unique subscriber or account identifier
198 assigned by the custodian to identify the user's account;
199 (b) evidence linking the account to the user; or
200 (c) a finding by the court that:
201 (i) the user had a specific account with the custodian, identifiable by the information
202 specified in Subsection (5)(a);
203 (ii) disclosure of the content of electronic communications of the user would not
204 violate 18 U.S.C. Sec. 2701 et seq., 47 U.S.C. Sec. 222, or other applicable law;
205 (iii) unless the user provided direction using an online tool, the user consented to
206 disclosure of the content of electronic communications; or
207 (iv) disclosure of the content of electronic communications of the user is reasonably
208 necessary for administration of the estate.
209 Section 8. Section 75-10-108 is enacted to read:
210 75-10-108. Disclosure of other digital assets of deceased user.
211 Unless the user prohibited disclosure of digital assets or the court directs otherwise, a
212 custodian shall disclose to the personal representative of the estate of a deceased user a
213 catalogue of electronic communications sent or received by the user and digital assets, other
214 than the content of electronic communications, of the user, if the representative gives the
215 custodian:
216 (1) a written request for disclosure in physical or electronic form;
217 (2) a certified copy of the death certificate of the user;
218 (3) a certified copy of the letter of appointment of the representative, a small estate
219 affidavit, or court order; and
220 (4) if requested by the custodian:
221 (a) a number, username, address, or other unique subscriber or account identifier
222 assigned by the custodian to identify the user's account;
223 (b) evidence linking the account to the user;
224 (c) an affidavit stating that disclosure of the user's digital assets is reasonably necessary
225 for administration of the estate; or
226 (d) a finding by the court that:
227 (i) the user had a specific account with the custodian, identifiable by the information
228 specified in Subsection (4)(a); or
229 (ii) disclosure of the user's digital assets is reasonably necessary for administration of
230 the estate.
231 Section 9. Section 75-10-109 is enacted to read:
232 75-10-109. Disclosure of content of electronic communications of principal.
233 To the extent a power of attorney expressly grants an agent authority over the content of
234 electronic communications sent or received by the principal and unless directed otherwise by
235 the principal or the court, a custodian shall disclose to the agent the content if the agent gives
236 the custodian:
237 (1) a written request for disclosure in physical or electronic form;
238 (2) an original or copy of the power of attorney expressly granting the agent authority
239 over the content of electronic communications of the principal;
240 (3) a certification by the agent, under penalty of perjury, that the power of attorney is in
241 effect; and
242 (4) if requested by the custodian:
243 (a) a number, username, address, or other unique subscriber or account identifier
244 assigned by the custodian to identify the principal's account; or
245 (b) evidence linking the account to the principal.
246 Section 10. Section 75-10-110 is enacted to read:
247 75-10-110. Disclosure of other digital assets of principal.
248 Unless otherwise ordered by the court, directed by the principal, or provided by a power
249 of attorney, a custodian shall disclose to an agent with specific authority over digital assets, or
250 general authority to act on behalf of a principal, a catalogue of electronic communications sent
251 or received by the principal and digital assets, other than the content of electronic
252 communications, of the principal if the agent gives the custodian:
253 (1) a written request for disclosure in physical or electronic form;
254 (2) an original or a copy of the power of attorney that gives the agent specific authority
255 over digital assets or general authority to act on behalf of the principal;
256 (3) a certification by the agent, under penalty of perjury, that the power of attorney is in
257 effect; and
258 (4) if requested by the custodian:
259 (a) a number, username, address, or other unique subscriber or account identifier
260 assigned by the custodian to identify the principal's account; or
261 (b) evidence linking the account to the principal.
262 Section 11. Section 75-10-111 is enacted to read:
263 75-10-111. Disclosure of digital assets held in trust when trustee is original user.
264 Unless otherwise ordered by the court or provided in a trust, a custodian shall disclose
265 to a trustee that is an original user of an account any digital asset of the account held in trust,
266 including a catalogue of electronic communications of the trustee and the content of electronic
267 communications.
268 Section 12. Section 75-10-112 is enacted to read:
269 75-10-112. Disclosure of contents of electronic communications held in trust when
270 trustee not original user.
271 Unless otherwise ordered by the court, directed by the user, or provided in a trust, a
272 custodian shall disclose to a trustee that is not an original user of an account the content of an
273 electronic communication sent or received by an original or successor user and carried,
274 maintained, processed, received, or stored by the custodian in the account of the trust if the
275 trustee gives the custodian:
276 (1) a written request for disclosure in physical or electronic form;
277 (2) a certified copy of the trust instrument or a certification of the trust under Section
278 75-7-1013 that includes consent to disclosure of the content of electronic communications to
279 the trustee;
280 (3) a certification by the trustee, under penalty of perjury, that the trust exists and the
281 trustee is a currently acting trustee of the trust; and
282 (4) if requested by the custodian:
283 (a) a number, username, address, or other unique subscriber or account identifier
284 assigned by the custodian to identify the trust's account; or
285 (b) evidence linking the account to the trust.
286 Section 13. Section 75-10-113 is enacted to read:
287 75-10-113. Disclosure of other digital assets held in trust when trustee not original
288 user.
289 Unless otherwise ordered by the court, directed by the user, or provided in a trust, a
290 custodian shall disclose, to a trustee that is not an original user of an account, a catalogue of
291 electronic communications sent or received by an original or successor user and stored, carried,
292 or maintained by the custodian in an account of the trust and any digital assets, other than the
293 content of electronic communications, in which the trust has a right or interest if the trustee
294 gives the custodian:
295 (1) a written request for disclosure in physical or electronic form;
296 (2) a certified copy of the trust instrument or a certification of the trust under Section
297 75-7-1013;
298 (3) a certification by the trustee, under penalty of perjury, that the trust exists and the
299 trustee is a currently acting trustee of the trust; and
300 (4) if requested by the custodian:
301 (a) a number, username, address, or other unique subscriber or account identifier
302 assigned by the custodian to identify the trust's account; or
303 (b) evidence linking the account to the trust.
304 Section 14. Section 75-10-114 is enacted to read:
305 75-10-114. Disclosure of digital assets to conservator or guardian of protected
306 person.
307 (1) After an opportunity for a hearing under Chapter 5b, Uniform Adult Guardianship
308 and Protective Proceedings Jurisdiction Act, the court may grant a conservator or guardian
309 access to the digital assets of a protected person.
310 (2) Unless otherwise ordered by the court or directed by the user, a custodian shall
311 disclose to a conservator or guardian the catalogue of electronic communications sent or
312 received by a protected person and any digital assets, other than the content of electronic
313 communications, in which the protected person has a right or interest if the conservator or
314 guardian gives the custodian:
315 (a) a written request for disclosure in physical or electronic form;
316 (b) a certified copy of the court order that gives the conservator or guardian authority
317 over the digital assets of the protected person; and
318 (c) if requested by the custodian:
319 (i) a number, username, address, or other unique subscriber or account identifier
320 assigned by the custodian to identify the account of the protected person; or
321 (ii) evidence linking the account to the protected person.
322 (3) A conservator or guardian with general authority to manage the assets of a
323 protected person may request a custodian of the digital assets of the protected person to
324 suspend or terminate an account of the protected person for good cause. A request made under
325 this section must be accompanied by a certified copy of the court order giving the conservator
326 or guardian authority over the protected person's property.
327 Section 15. Section 75-10-115 is enacted to read:
328 75-10-115. Fiduciary duty and authority.
329 (1) The legal duties imposed on a fiduciary charged with managing tangible property
330 apply to the management of digital assets, including:
331 (a) the duty of care;
332 (b) the duty of loyalty; and
333 (c) the duty of confidentiality.
334 (2) A fiduciary's or designated recipient's authority with respect to a digital asset of a
335 user:
336 (a) except as otherwise provided in Section 75-10-104, is subject to the applicable
337 terms of service;
338 (b) is subject to other applicable law, including copyright law;
339 (c) in the case of a fiduciary, is limited by the scope of the fiduciary's duties; and
340 (d) may not be used to impersonate the user.
341 (3) A fiduciary with authority over the property of a decedent, protected person,
342 principal, or settlor has the right to access any digital asset in which the decedent, protected
343 person, principal, or settlor had a right or interest and that is not held by a custodian or subject
344 to a terms of service agreement.
345 (4) A fiduciary acting within the scope of the fiduciary's duties is an authorized user of
346 the property of the decedent, protected person, principal, or settlor for the purpose of applicable
347 computer fraud and unauthorized computer access laws.
348 (5) A fiduciary with authority over the tangible, personal property of a decedent,
349 protected person, principal, or settlor:
350 (a) has the right to access the property and any digital asset stored in it; and
351 (b) is an authorized user for the purpose of computer fraud and unauthorized computer
352 access laws.
353 (6) A custodian may disclose information in an account to a fiduciary of the user when
354 the information is required to terminate an account used to access digital assets licensed to the
355 user.
356 (7) A fiduciary of a user may request a custodian to terminate the user's account. A
357 request for termination shall be in writing, in either physical or electronic form, and
358 accompanied by:
359 (a) if the user is deceased, a certified copy of the death certificate of the user;
360 (b) a certified copy of the letter of appointment of the representative, a small estate
361 affidavit, or court order, power of attorney, or trust giving the fiduciary authority over the
362 account; and
363 (c) if requested by the custodian:
364 (i) a number, username, address, or other unique subscriber or account identifier
365 assigned by the custodian to identify the user's account;
366 (ii) evidence linking the account to the user; or
367 (iii) a finding by the court that the user had a specific account with the custodian,
368 identifiable by the information specified in Subsection (7)(c)(i).
369 Section 16. Section 75-10-116 is enacted to read:
370 75-10-116. Custodian compliance and immunity.
371 (1) Not later than 60 days after receipt of the information required under Sections
372 75-10-107 through 75-10-115, a custodian shall comply with a request under this chapter from
373 a fiduciary or designated recipient to disclose digital assets or terminate an account. If the
374 custodian fails to comply, the fiduciary or designated recipient may apply to the court for an
375 order directing compliance.
376 (2) An order under Subsection (1) directing compliance shall contain a finding that
377 compliance is not in violation of 18 U.S.C. Sec. 2702.
378 (3) A custodian may notify the user that a request for disclosure or to terminate an
379 account was made under this chapter.
380 (4) A custodian may deny a request under this chapter from a fiduciary or designated
381 recipient for disclosure of digital assets or to terminate an account if the custodian is aware of
382 any lawful access to the account following the receipt of the fiduciary's request.
383 (5) This chapter does not limit a custodian's ability to obtain or require a fiduciary or
384 designated recipient requesting disclosure or termination under this chapter to obtain a court
385 order that:
386 (a) specifies that an account belongs to the protected person or principal;
387 (b) specifies that there is sufficient consent from the protected person or principal to
388 support the requested disclosure; and
389 (c) contains a finding required by law other than this chapter.
390 (6) A custodian and its officers, employees, and agents are immune from liability for
391 an act or omission done in good faith in compliance with this chapter.
392 Section 17. Section 75-10-117 is enacted to read:
393 75-10-117. Uniformity of application and construction.
394 In applying and construing this uniform act, consideration shall be given to the need to
395 promote uniformity of the law with respect to its subject matter among states that enact it.
396 Section 18. Section 75-10-118 is enacted to read:
397 75-10-118. Relation to Electronic Signatures in Global and National Commerce
398 Act.
399 This chapter modifies, limits, or supersedes the Electronic Signatures in Global and
400 National Commerce Act, 15 U.S.C. Sec. 7001 et seq., but does not modify, limit, or supersede
401 Section 101(c) of that act or 15 U.S.C. Sec. 7001(c), or authorize electronic delivery of any of
402 the notices described in Section 103(b) of that act or 15 U.S.C. Sec. 7003(b).