Uniform Fiduciary Access to Digital Assets law (UFADA)

From: Susan Worth-Howe

Subject: trust termination

I have 2 issues:

1. How can I give notice to unknown creditors when there is no probate as it's only a termination of an old trust.

2. Because of ambiguous language in the final distribution article, how does one go about petitioning the court under ARS 14-10201 A.

  After the petition with an proposed instruction/order attached what other documents are needed to be filed to have the Court rule? What  notices are needed. Personal service required?

Thank you for your help. Susan O. Worth-Howe

As to your first question, you give notice very much like the notice to creditors provision in 14-3801. Look at 14-6103 (www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/14/... for the authority to give notice to creditors outside a probate estate (for non-probate transfers, as with a trust).

As to the second question, I think you're asking about who is entitled to notice of your Petition for Instructions. You are trying to foreclose complaints from anyone having a contrary interpretation, so I think you want to give notice to all qualified beneficiaries AND anyone who would be a qualified beneficiary under any plausible alternative reading of the ambiguity. Attach a copy of the trust (or of the relevant provisions necessary to resolve the ambiguity) and, as you suggest, propose a specific choice. No need to publish notice, unless there are beneficiaries you can't locate. No, personal service is not required. If I've misunderstood your situation, I might modify my answer once I understand better.

HOUSE BILL 2467

1 Be it enacted by the Legislature of the State of Arizona:

2 Section 1. Title 14, Arizona Revised Statutes, is amended by adding 3 chapter 13, to read:

4 CHAPTER 13 5 REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT 6 ARTICLE 1. GENERAL PROVISIONS 7 14-13101. Short title 8 THIS CHAPTER MAY BE CITED AS THE REVISED UNIFORM FIDUCIARY ACCESS TO 9 DIGITAL ASSETS ACT. 10 14-13102. Definitions 11 IN THIS CHAPTER, UNLESS THE CONTEXT OTHERWISE REQUIRES: 12 1. "ACCOUNT" MEANS AN ARRANGEMENT UNDER A TERMS-OF-SERVICE AGREEMENT 13 IN WHICH A CUSTODIAN CARRIES, MAINTAINS, PROCESSES, RECEIVES OR STORES A 14 DIGITAL ASSET OF THE USER OR PROVIDES GOODS OR SERVICES TO THE USER. 15 2. "AGENT" MEANS AN ATTORNEY-IN-FACT GRANTED AUTHORITY UNDER A DURABLE 16 OR NONDURABLE POWER OF ATTORNEY. 17 3. "CARRIES" MEANS ENGAGES IN THE TRANSMISSION OF AN ELECTRONIC 18 COMMUNICATION. 19 4. "CATALOGUE OF ELECTRONIC COMMUNICATIONS" MEANS INFORMATION THAT 20 IDENTIFIES EACH PERSON WITH WHICH A USER HAS HAD AN ELECTRONIC COMMUNICATION, 21 THE TIME AND DATE OF THE COMMUNICATION AND THE ELECTRONIC ADDRESS OF THE 22 PERSON. 23 5. "CONSERVATOR" MEANS A PERSON APPOINTED BY A COURT TO MANAGE THE 24 ESTATE OF A LIVING INDIVIDUAL AND INCLUDES A LIMITED CONSERVATOR AND A 25 FIDUCIARY AS DEFINED IN SECTION 14-5651, SUBSECTION K. 26 6. "CONTENT OF AN ELECTRONIC COMMUNICATION" MEANS INFORMATION 27 CONCERNING THE SUBSTANCE OR MEANING OF THE COMMUNICATION THAT MEETS ALL OF 28 THE FOLLOWING REQUIREMENTS: 29 (a) HAS BEEN SENT OR RECEIVED BY A USER. 30 (b) IS IN ELECTRONIC STORAGE BY A CUSTODIAN PROVIDING AN 31 ELECTRONIC-COMMUNICATION SERVICE TO THE PUBLIC OR IS CARRIED OR MAINTAINED BY 32 A CUSTODIAN PROVIDING A REMOTE-COMPUTING SERVICE TO THE PUBLIC. 33 (c) IS NOT READILY ACCESSIBLE TO THE PUBLIC. 34 7. "COURT" MEANS THE SUPERIOR COURT. 35 8. "CUSTODIAN" MEANS A PERSON THAT CARRIES, MAINTAINS, PROCESSES, 36 RECEIVES OR STORES A DIGITAL ASSET OF A USER. 37 9. "DESIGNATED RECIPIENT" MEANS A PERSON CHOSEN BY A USER USING AN 38 ONLINE TOOL TO ADMINISTER DIGITAL ASSETS OF THE USER. 39 10. "DIGITAL ASSET" MEANS AN ELECTRONIC RECORD IN WHICH AN INDIVIDUAL 40 HAS A RIGHT OR INTEREST. DIGITAL ASSET DOES NOT INCLUDE AN UNDERLYING ASSET 41 OR LIABILITY UNLESS THE ASSET OR LIABILITY IS ITSELF AN ELECTRONIC RECORD. 42 11. "ELECTRONIC" MEANS RELATING TO TECHNOLOGY HAVING ELECTRICAL, 43 DIGITAL, MAGNETIC, WIRELESS, OPTICAL, ELECTROMAGNETIC OR SIMILAR 44 CAPABILITIES. H.B. 2467 - 2 - 1 12. "ELECTRONIC COMMUNICATION" HAS THE SAME MEANING PRESCRIBED IN 18 2 UNITED STATES CODE SECTION 2510(12). 3 13. "ELECTRONIC-COMMUNICATION SERVICE" MEANS A CUSTODIAN THAT PROVIDES 4 TO A USER THE ABILITY TO SEND OR RECEIVE AN ELECTRONIC COMMUNICATION. 5 14. "FIDUCIARY" MEANS AN ORIGINAL, ADDITIONAL OR SUCCESSOR PERSONAL 6 REPRESENTATIVE, CONSERVATOR, AGENT, TRUSTEE OR A FIDUCIARY AS DEFINED IN 7 SECTION 14-5651, SUBSECTION K. 8 15. "INFORMATION" MEANS DATA, TEXT, IMAGES, VIDEOS, SOUNDS, CODES, 9 COMPUTER PROGRAMS, SOFTWARE, DATABASES OR THE LIKE. 10 16. "ONLINE TOOL" MEANS AN ELECTRONIC SERVICE PROVIDED BY A CUSTODIAN 11 THAT ALLOWS THE USER, IN AN AGREEMENT DISTINCT FROM THE TERMS-OF-SERVICE 12 AGREEMENT BETWEEN THE CUSTODIAN AND USER, TO PROVIDE DIRECTIONS FOR 13 DISCLOSURE OR NONDISCLOSURE OF DIGITAL ASSETS TO A THIRD PERSON. 14 17. "PERSON" MEANS AN INDIVIDUAL, AN ESTATE, A BUSINESS OR NONPROFIT 15 ENTITY, A PUBLIC CORPORATION, A GOVERNMENT OR GOVERNMENTAL SUBDIVISION, 16 AGENCY OR INSTRUMENTALITY OR ANY OTHER LEGAL ENTITY. 17 18. "PERSONAL REPRESENTATIVE" MEANS AN EXECUTOR, AN ADMINISTRATOR, A 18 SPECIAL ADMINISTRATOR OR PERSON THAT PERFORMS SUBSTANTIALLY THE SAME FUNCTION 19 UNDER LAW OF THIS STATE OTHER THAN THIS CHAPTER. 20 19. "POWER OF ATTORNEY" MEANS A RECORD THAT GRANTS AN AGENT AUTHORITY 21 TO ACT IN THE PLACE OF A PRINCIPAL. 22 20. "PRINCIPAL" MEANS AN INDIVIDUAL WHO GRANTS AUTHORITY TO AN AGENT 23 IN A POWER OF ATTORNEY. 24 21. "PROTECTED PERSON" MEANS AN INDIVIDUAL FOR WHOM A CONSERVATOR HAS 25 BEEN APPOINTED. PROTECTED PERSON INCLUDES AN INDIVIDUAL FOR WHOM AN 26 APPLICATION FOR THE APPOINTMENT OF A CONSERVATOR IS PENDING. 27 22. "RECORD" MEANS INFORMATION THAT IS INSCRIBED ON A TANGIBLE MEDIUM 28 OR THAT IS STORED IN AN ELECTRONIC OR OTHER MEDIUM AND THAT IS RETRIEVABLE IN 29 PERCEIVABLE FORM. 30 23. "REMOTE-COMPUTING SERVICE" MEANS A CUSTODIAN THAT PROVIDES TO A 31 USER COMPUTER-PROCESSING SERVICES OR THE STORAGE OF DIGITAL ASSETS BY MEANS 32 OF AN ELECTRONIC COMMUNICATIONS SYSTEM, AS DEFINED IN 18 UNITED STATES CODE 33 SECTION 2510(14). 34 24. "TERMS-OF-SERVICE AGREEMENT" MEANS AN AGREEMENT THAT CONTROLS THE 35 RELATIONSHIP BETWEEN A USER AND A CUSTODIAN. 36 25. "TRUSTEE" MEANS A FIDUCIARY WITH LEGAL TITLE TO PROPERTY UNDER AN 37 AGREEMENT OR DECLARATION THAT CREATES A BENEFICIAL INTEREST IN ANOTHER. 38 TRUSTEE INCLUDES A SUCCESSOR TRUSTEE. 39 26. "USER" MEANS A PERSON THAT HAS AN ACCOUNT WITH A CUSTODIAN. 40 27. "WILL" INCLUDES A CODICIL, TESTAMENTARY INSTRUMENT THAT ONLY 41 APPOINTS AN EXECUTOR AND INSTRUMENT THAT REVOKES OR REVISES A TESTAMENTARY 42 INSTRUMENT. 43 14-13103. Applicability 44 A. THIS CHAPTER APPLIES TO ALL OF THE FOLLOWING: H.B. 2467 - 3 - 1 1. A FIDUCIARY ACTING UNDER A WILL OR POWER OF ATTORNEY EXECUTED 2 BEFORE, ON OR AFTER THE EFFECTIVE DATE OF THIS CHAPTER. 3 2. A PERSONAL REPRESENTATIVE ACTING FOR A DECEDENT WHO DIED BEFORE, ON 4 OR AFTER THE EFFECTIVE DATE OF THIS CHAPTER. 5 3. A CONSERVATORSHIP PROCEEDING COMMENCED BEFORE, ON OR AFTER THE 6 EFFECTIVE DATE OF THIS CHAPTER. 7 4. A TRUSTEE ACTING UNDER A TRUST CREATED BEFORE, ON OR AFTER THE 8 EFFECTIVE DATE OF THIS CHAPTER. 9 B. THIS CHAPTER APPLIES TO A CUSTODIAN IF THE USER RESIDES IN THIS 10 STATE OR RESIDED IN THIS STATE AT THE TIME OF THE USER'S DEATH. 11 C. THIS CHAPTER DOES NOT APPLY TO A DIGITAL ASSET OF AN EMPLOYER USED 12 BY AN EMPLOYEE IN THE ORDINARY COURSE OF THE EMPLOYER'S BUSINESS. 13 14-13104. User direction for disclosure of digital assets 14 A. A USER MAY USE AN ONLINE TOOL TO DIRECT THE CUSTODIAN TO DISCLOSE 15 TO A DESIGNATED RECIPIENT OR NOT TO DISCLOSE SOME OR ALL OF THE USER'S 16 DIGITAL ASSETS, INCLUDING THE CONTENT OF ELECTRONIC COMMUNICATIONS. IF THE 17 ONLINE TOOL ALLOWS THE USER TO MODIFY OR DELETE A DIRECTION AT ALL TIMES, A 18 DIRECTION REGARDING DISCLOSURE USING AN ONLINE TOOL OVERRIDES A CONTRARY 19 DIRECTION BY THE USER IN A WILL, TRUST, POWER OF ATTORNEY OR OTHER RECORD. 20 B. IF A USER HAS NOT USED AN ONLINE TOOL TO GIVE DIRECTION UNDER 21 SUBSECTION A OF THIS SECTION OR IF THE CUSTODIAN HAS NOT PROVIDED AN ONLINE 22 TOOL, THE USER MAY ALLOW OR PROHIBIT IN A WILL, TRUST, POWER OF ATTORNEY OR 23 OTHER RECORD DISCLOSURE TO A FIDUCIARY OF SOME OR ALL OF THE USER'S DIGITAL 24 ASSETS, INCLUDING THE CONTENT OF ELECTRONIC COMMUNICATIONS SENT OR RECEIVED 25 BY THE USER. 26 C. A USER'S DIRECTION UNDER SUBSECTION A OR B OF THIS SECTION 27 OVERRIDES A CONTRARY PROVISION IN A TERMS-OF-SERVICE AGREEMENT THAT DOES NOT 28 REQUIRE THE USER TO ACT AFFIRMATIVELY AND DISTINCTLY FROM THE USER'S ASSENT 29 TO THE TERMS OF SERVICE. 30 14-13105. Terms-of-service agreement 31 A. THIS CHAPTER DOES NOT CHANGE OR IMPAIR A RIGHT OF A CUSTODIAN OR A 32 USER UNDER A TERMS-OF-SERVICE AGREEMENT TO ACCESS AND USE DIGITAL ASSETS OF 33 THE USER. 34 B. THIS CHAPTER DOES NOT GIVE A FIDUCIARY OR DESIGNATED RECIPIENT ANY 35 NEW OR EXPANDED RIGHTS OTHER THAN THOSE HELD BY THE USER FOR WHOM, OR FOR 36 WHOSE ESTATE, THE FIDUCIARY OR DESIGNATED RECIPIENT ACTS OR REPRESENTS. 37 C. A FIDUCIARY'S OR DESIGNATED RECIPIENT'S ACCESS TO DIGITAL ASSETS 38 MAY BE MODIFIED OR ELIMINATED BY A USER, BY FEDERAL LAW OR BY A 39 TERMS-OF-SERVICE AGREEMENT IF THE USER HAS NOT PROVIDED DIRECTION UNDER 40 SECTION 14-13104. 41 14-13106. Procedure for disclosing digital assets 42 A. WHEN DISCLOSING DIGITAL ASSETS OF A USER UNDER THIS CHAPTER, THE 43 CUSTODIAN MAY DO, AT ITS SOLE DISCRETION, ANY OF THE FOLLOWING: 44 1. GRANT A FIDUCIARY OR DESIGNATED RECIPIENT FULL ACCESS TO THE USER'S 45 ACCOUNT. H.B. 2467 - 4 - 1 2. GRANT A FIDUCIARY OR DESIGNATED RECIPIENT PARTIAL ACCESS TO THE 2 USER'S ACCOUNT SUFFICIENT TO PERFORM THE TASKS WITH WHICH THE FIDUCIARY OR 3 DESIGNATED RECIPIENT IS CHARGED. 4 3. PROVIDE A FIDUCIARY OR DESIGNATED RECIPIENT A COPY IN A RECORD OF 5 ANY DIGITAL ASSET THAT, ON THE DATE THE CUSTODIAN RECEIVED THE REQUEST FOR 6 DISCLOSURE, THE USER COULD HAVE ACCESSED IF THE USER WERE ALIVE AND HAD FULL 7 CAPACITY AND ACCESS TO THE ACCOUNT. 8 B. A CUSTODIAN MAY ASSESS A REASONABLE ADMINISTRATIVE CHARGE FOR THE 9 COST OF DISCLOSING DIGITAL ASSETS UNDER THIS CHAPTER. 10 C. A CUSTODIAN NEED NOT DISCLOSE UNDER THIS CHAPTER A DIGITAL ASSET 11 DELETED BY A USER. 12 D. IF A USER DIRECTS OR A FIDUCIARY REQUESTS A CUSTODIAN TO DISCLOSE 13 UNDER THIS CHAPTER SOME, BUT NOT ALL, OF THE USER'S DIGITAL ASSETS, THE 14 CUSTODIAN NEED NOT DISCLOSE THE ASSETS IF SEGREGATION OF THE ASSETS WOULD 15 IMPOSE AN UNDUE BURDEN ON THE CUSTODIAN. IF THE CUSTODIAN BELIEVES THE 16 DIRECTION OR REQUEST IMPOSES AN UNDUE BURDEN, THE CUSTODIAN OR FIDUCIARY MAY 17 SEEK AN ORDER FROM THE COURT TO DISCLOSE ANY OF THE FOLLOWING: 18 1. A SUBSET LIMITED BY DATE OF THE USER'S DIGITAL ASSETS. 19 2. ALL OF THE USER'S DIGITAL ASSETS TO THE FIDUCIARY OR DESIGNATED 20 RECIPIENT. 21 3. NONE OF THE USER'S DIGITAL ASSETS. 22 4. ALL OF THE USER'S DIGITAL ASSETS TO THE COURT FOR REVIEW IN CAMERA. 23 14-13107. Disclosure of content of electronic communications of 24 deceased user 25 A. IF A DECEASED USER CONSENTED OR A COURT DIRECTS DISCLOSURE OF THE 26 CONTENTS OF ELECTRONIC COMMUNICATIONS OF THE USER, THE CUSTODIAN SHALL 27 DISCLOSE TO THE PERSONAL REPRESENTATIVE OF THE ESTATE OF THE USER THE CONTENT 28 OF AN ELECTRONIC COMMUNICATION SENT OR RECEIVED BY THE USER IF THE 29 REPRESENTATIVE GIVES THE CUSTODIAN ALL OF THE FOLLOWING: 30 1. A WRITTEN REQUEST FOR DISCLOSURE IN PHYSICAL OR ELECTRONIC FORM. 31 2. A CERTIFIED COPY OF THE DEATH CERTIFICATE OF THE USER. 32 3. A CERTIFIED COPY OF THE LETTERS TESTAMENTARY, A SMALL-ESTATE 33 AFFIDAVIT OR A COURT ORDER. 34 4. UNLESS THE USER PROVIDED DIRECTION USING AN ONLINE TOOL, A COPY OF 35 THE USER'S WILL, TRUST, POWER OF ATTORNEY OR OTHER RECORD EVIDENCING THE 36 USER'S CONSENT TO DISCLOSURE OF THE CONTENT OF ELECTRONIC COMMUNICATIONS. 37 5. IF REQUESTED BY THE CUSTODIAN, ANY OF THE FOLLOWING: 38 (a) A NUMBER, USERNAME, ADDRESS OR OTHER UNIQUE SUBSCRIBER OR ACCOUNT 39 IDENTIFIER ASSIGNED BY THE CUSTODIAN TO IDENTIFY THE USER'S ACCOUNT. 40 (b) EVIDENCE LINKING THE ACCOUNT TO THE USER. 41 (c) A FINDING BY THE COURT OF ONE OR MORE OF THE FOLLOWING: 42 (i) THE USER HAD A SPECIFIC ACCOUNT WITH THE CUSTODIAN, IDENTIFIABLE 43 BY THE INFORMATION SPECIFIED IN SUBDIVISION (a) OF THIS PARAGRAPH. H.B. 2467 - 5 - 1 (ii) DISCLOSURE OF THE CONTENT OF ELECTRONIC COMMUNICATIONS OF THE 2 USER WOULD NOT VIOLATE 18 UNITED STATES CODE SECTIONS 2701 THROUGH 2712, 3 47 UNITED STATES CODE SECTION 222 OR OTHER APPLICABLE LAW. 4 (iii) UNLESS THE USER PROVIDED DIRECTION USING AN ONLINE TOOL, THE 5 USER CONSENTED TO DISCLOSURE OF THE CONTENT OF ELECTRONIC COMMUNICATIONS. 6 (iv) DISCLOSURE OF THE CONTENT OF ELECTRONIC COMMUNICATIONS OF THE 7 USER IS REASONABLY NECESSARY FOR ADMINISTRATION OF THE ESTATE. 8 14-13108. Disclosure of other digital assets of deceased user 9 UNLESS THE USER PROHIBITED DISCLOSURE OF DIGITAL ASSETS OR THE COURT 10 DIRECTS OTHERWISE, A CUSTODIAN SHALL DISCLOSE TO THE PERSONAL REPRESENTATIVE 11 OF THE ESTATE OF A DECEASED USER A CATALOGUE OF ELECTRONIC COMMUNICATIONS 12 SENT OR RECEIVED BY THE USER AND DIGITAL ASSETS, OTHER THAN THE CONTENT OF 13 ELECTRONIC COMMUNICATIONS, OF THE USER, IF THE REPRESENTATIVE GIVES THE 14 CUSTODIAN ALL OF THE FOLLOWING: 15 1. A WRITTEN REQUEST FOR DISCLOSURE IN PHYSICAL OR ELECTRONIC FORM. 16 2. A CERTIFIED COPY OF THE DEATH CERTIFICATE OF THE USER. 17 3. A CERTIFIED COPY OF THE LETTERS TESTAMENTARY, A SMALL-ESTATE 18 AFFIDAVIT OR A COURT ORDER. 19 4. IF REQUESTED BY THE CUSTODIAN ANY OF THE FOLLOWING: 20 (a) A NUMBER, USERNAME, ADDRESS OR OTHER UNIQUE SUBSCRIBER OR ACCOUNT 21 IDENTIFIER ASSIGNED BY THE CUSTODIAN TO IDENTIFY THE USER'S ACCOUNT. 22 (b) EVIDENCE LINKING THE ACCOUNT TO THE USER. 23 (c) AN AFFIDAVIT STATING THAT DISCLOSURE OF THE USER'S DIGITAL ASSETS 24 IS REASONABLY NECESSARY FOR ADMINISTRATION OF THE ESTATE. 25 (d) A FINDING BY THE COURT OF EITHER OF THE FOLLOWING: 26 (i) THE USER HAD A SPECIFIC ACCOUNT WITH THE CUSTODIAN, IDENTIFIABLE 27 BY THE INFORMATION SPECIFIED IN SUBDIVISION (a) OF THIS PARAGRAPH. 28 (ii) DISCLOSURE OF THE USER'S DIGITAL ASSETS IS REASONABLY NECESSARY 29 FOR ADMINISTRATION OF THE ESTATE. 30 14-13109. Disclosure of content of electronic communications of 31 principal 32 TO THE EXTENT A POWER OF ATTORNEY EXPRESSLY GRANTS AN AGENT AUTHORITY 33 OVER THE CONTENT OF ELECTRONIC COMMUNICATIONS SENT OR RECEIVED BY THE 34 PRINCIPAL AND UNLESS DIRECTED OTHERWISE BY THE PRINCIPAL OR THE COURT, A 35 CUSTODIAN SHALL DISCLOSE TO THE AGENT THE CONTENT IF THE AGENT GIVES THE 36 CUSTODIAN ALL OF THE FOLLOWING: 37 1. A WRITTEN REQUEST FOR DISCLOSURE IN PHYSICAL OR ELECTRONIC FORM. 38 2. AN ORIGINAL OR COPY OF THE POWER OF ATTORNEY EXPRESSLY GRANTING THE 39 AGENT AUTHORITY OVER THE CONTENT OF ELECTRONIC COMMUNICATIONS OF THE 40 PRINCIPAL. 41 3. A CERTIFICATION BY THE AGENT, UNDER PENALTY OF PERJURY, THAT THE 42 POWER OF ATTORNEY IS IN EFFECT. 43 4. IF REQUESTED BY THE CUSTODIAN ANY OF THE FOLLOWING: 44 (a) A NUMBER, USERNAME, ADDRESS OR OTHER UNIQUE SUBSCRIBER OR ACCOUNT 45 IDENTIFIER ASSIGNED BY THE CUSTODIAN TO IDENTIFY THE PRINCIPAL'S ACCOUNT. H.B. 2467 - 6 - 1 (b) EVIDENCE LINKING THE ACCOUNT TO THE PRINCIPAL. 2 14-13110. Disclosure of other digital assets of principal 3 UNLESS OTHERWISE ORDERED BY THE COURT, DIRECTED BY THE PRINCIPAL OR 4 PROVIDED BY A POWER OF ATTORNEY, A CUSTODIAN SHALL DISCLOSE TO AN AGENT WITH 5 SPECIFIC AUTHORITY OVER DIGITAL ASSETS OR GENERAL AUTHORITY TO ACT ON BEHALF 6 OF A PRINCIPAL A CATALOGUE OF ELECTRONIC COMMUNICATIONS SENT OR RECEIVED BY 7 THE PRINCIPAL AND DIGITAL ASSETS, OTHER THAN THE CONTENT OF ELECTRONIC 8 COMMUNICATIONS, OF THE PRINCIPAL IF THE AGENT GIVES THE CUSTODIAN ALL OF THE 9 FOLLOWING: 10 1. A WRITTEN REQUEST FOR DISCLOSURE IN PHYSICAL OR ELECTRONIC FORM. 11 2. AN ORIGINAL OR A COPY OF THE POWER OF ATTORNEY THAT GIVES THE AGENT 12 SPECIFIC AUTHORITY OVER DIGITAL ASSETS OR GENERAL AUTHORITY TO ACT ON BEHALF 13 OF THE PRINCIPAL. 14 3. A CERTIFICATION BY THE AGENT, UNDER PENALTY OF PERJURY, THAT THE 15 POWER OF ATTORNEY IS IN EFFECT. 16 4. IF REQUESTED BY THE CUSTODIAN ANY OF THE FOLLOWING: 17 (a) A NUMBER, USERNAME, ADDRESS OR OTHER UNIQUE SUBSCRIBER OR ACCOUNT 18 IDENTIFIER ASSIGNED BY THE CUSTODIAN TO IDENTIFY THE PRINCIPAL'S ACCOUNT. 19 (b) EVIDENCE LINKING THE ACCOUNT TO THE PRINCIPAL. 20 14-13111. Disclosure of digital assets held in trust when 21 trustee is original user 22 UNLESS OTHERWISE ORDERED BY THE COURT OR PROVIDED IN A TRUST, A 23 CUSTODIAN SHALL DISCLOSE TO A TRUSTEE THAT IS AN ORIGINAL USER OF AN ACCOUNT 24 ANY DIGITAL ASSET OF THE ACCOUNT HELD IN TRUST, INCLUDING A CATALOGUE OF 25 ELECTRONIC COMMUNICATIONS OF THE TRUSTEE AND THE CONTENT OF ELECTRONIC 26 COMMUNICATIONS. 27 14-13112. Disclosure of contents of electronic communications 28 held in trust when trustee is not original user 29 UNLESS OTHERWISE ORDERED BY THE COURT, DIRECTED BY THE USER OR PROVIDED 30 IN A TRUST, A CUSTODIAN SHALL DISCLOSE TO A TRUSTEE THAT IS NOT AN ORIGINAL 31 USER OF AN ACCOUNT THE CONTENT OF AN ELECTRONIC COMMUNICATION SENT OR 32 RECEIVED BY AN ORIGINAL OR SUCCESSOR USER AND CARRIED, MAINTAINED, PROCESSED, 33 RECEIVED OR STORED BY THE CUSTODIAN IN THE ACCOUNT OF THE TRUST, IF THE 34 TRUSTEE GIVES THE CUSTODIAN ALL OF THE FOLLOWING: 35 1. A WRITTEN REQUEST FOR DISCLOSURE IN PHYSICAL OR ELECTRONIC FORM. 36 2. A CERTIFIED COPY OF THE TRUST INSTRUMENT OR A CERTIFICATION OF THE 37 TRUST UNDER SECTION 14-11013 THAT INCLUDES CONSENT TO DISCLOSURE OF THE 38 CONTENT OF ELECTRONIC COMMUNICATIONS TO THE TRUSTEE. 39 3. A CERTIFICATION BY THE TRUSTEE, UNDER PENALTY OF PERJURY, THAT THE 40 TRUST EXISTS AND THE TRUSTEE IS A CURRENTLY ACTING TRUSTEE OF THE TRUST. 41 4. IF REQUESTED BY THE CUSTODIAN ANY OF THE FOLLOWING: 42 (a) A NUMBER, USERNAME, ADDRESS OR OTHER UNIQUE SUBSCRIBER OR ACCOUNT 43 IDENTIFIER ASSIGNED BY THE CUSTODIAN TO IDENTIFY THE TRUST'S ACCOUNT. 44 (b) EVIDENCE LINKING THE ACCOUNT TO THE TRUST. H.B. 2467 - 7 - 1 14-13113. Disclosure of other digital assets held in trust when 2 trustee is not original user 3 UNLESS OTHERWISE ORDERED BY THE COURT, DIRECTED BY THE USER OR PROVIDED 4 IN A TRUST, A CUSTODIAN SHALL DISCLOSE TO A TRUSTEE THAT IS NOT AN ORIGINAL 5 USER OF AN ACCOUNT A CATALOGUE OF ELECTRONIC COMMUNICATIONS SENT OR RECEIVED 6 BY AN ORIGINAL OR SUCCESSOR USER AND STORED, CARRIED OR MAINTAINED BY THE 7 CUSTODIAN IN AN ACCOUNT OF THE TRUST AND ANY DIGITAL ASSETS, OTHER THAN THE 8 CONTENT OF ELECTRONIC COMMUNICATIONS, IN WHICH THE TRUST HAS A RIGHT OR 9 INTEREST IF THE TRUSTEE GIVES THE CUSTODIAN ALL OF THE FOLLOWING: 10 1. A WRITTEN REQUEST FOR DISCLOSURE IN PHYSICAL OR ELECTRONIC FORM. 11 2. A CERTIFIED COPY OF THE TRUST INSTRUMENT OR A CERTIFICATION OF THE 12 TRUST UNDER SECTION 14-11013. 13 3. A CERTIFICATION BY THE TRUSTEE, UNDER PENALTY OF PERJURY, THAT THE 14 TRUST EXISTS AND THE TRUSTEE IS A CURRENTLY ACTING TRUSTEE OF THE TRUST. 15 4. IF REQUESTED BY THE CUSTODIAN ANY OF THE FOLLOWING: 16 (a) A NUMBER, USERNAME, ADDRESS OR OTHER UNIQUE SUBSCRIBER OR ACCOUNT 17 IDENTIFIER ASSIGNED BY THE CUSTODIAN TO IDENTIFY THE TRUST'S ACCOUNT. 18 (b) EVIDENCE LINKING THE ACCOUNT TO THE TRUST. 19 14-13114. Disclosure of digital assets to conservator of 20 protected person 21 A. AFTER AN OPPORTUNITY FOR A HEARING UNDER CHAPTER 5, ARTICLE 4 OF 22 THIS TITLE, THE COURT MAY GRANT A CONSERVATOR ACCESS TO THE DIGITAL ASSETS OF 23 A PROTECTED PERSON. 24 B. UNLESS OTHERWISE ORDERED BY THE COURT OR DIRECTED BY THE USER, A 25 CUSTODIAN SHALL DISCLOSE TO A CONSERVATOR THE CATALOGUE OF ELECTRONIC 26 COMMUNICATIONS SENT OR RECEIVED BY A PROTECTED PERSON AND ANY DIGITAL ASSETS, 27 OTHER THAN THE CONTENT OF ELECTRONIC COMMUNICATIONS, IN WHICH THE PROTECTED 28 PERSON HAS A RIGHT OR INTEREST IF THE CONSERVATOR GIVES THE CUSTODIAN ALL OF 29 THE FOLLOWING: 30 1. A WRITTEN REQUEST FOR DISCLOSURE IN PHYSICAL OR ELECTRONIC FORM. 31 2. A CERTIFIED COPY OF THE COURT ORDER THAT GIVES THE CONSERVATOR 32 AUTHORITY OVER THE DIGITAL ASSETS OF THE PROTECTED PERSON. 33 3. IF REQUESTED BY THE CUSTODIAN ANY OF THE FOLLOWING: 34 (a) A NUMBER, USERNAME, ADDRESS OR OTHER UNIQUE SUBSCRIBER OR ACCOUNT 35 IDENTIFIER ASSIGNED BY THE CUSTODIAN TO IDENTIFY THE ACCOUNT OF THE PROTECTED 36 PERSON. 37 (b) EVIDENCE LINKING THE ACCOUNT TO THE TRUST. 38 C. A CONSERVATOR WITH GENERAL AUTHORITY TO MANAGE THE ASSETS OF A 39 PROTECTED PERSON MAY REQUEST A CUSTODIAN OF THE DIGITAL ASSETS OF THE 40 PROTECTED PERSON TO SUSPEND OR TERMINATE AN ACCOUNT OF THE PROTECTED PERSON 41 FOR GOOD CAUSE. A REQUEST MADE UNDER THIS SUBSECTION MUST BE ACCOMPANIED BY 42 A CERTIFIED COPY OF THE COURT ORDER GIVING THE CONSERVATOR AUTHORITY OVER THE 43 PROTECTED PERSON'S PROPERTY. H.B. 2467 - 8 - 1 14-13115. Fiduciary duty and authority 2 A. THE LEGAL DUTIES IMPOSED ON A FIDUCIARY CHARGED WITH MANAGING 3 TANGIBLE PROPERTY APPLY TO THE MANAGEMENT OF DIGITAL ASSETS, INCLUDING ALL OF 4 THE FOLLOWING, IF APPLICABLE: 5 1. THE DUTY OF CARE. 6 2. THE DUTY OF LOYALTY. 7 3. THE DUTY OF CONFIDENTIALITY. 8 B. A FIDUCIARY'S OR DESIGNATED RECIPIENT'S AUTHORITY WITH RESPECT TO A 9 DIGITAL ASSET OF A USER: 10 1. EXCEPT AS OTHERWISE PROVIDED IN SECTION 14-13104, IS SUBJECT TO THE 11 APPLICABLE TERMS OF SERVICE. 12 2. IS SUBJECT TO OTHER APPLICABLE LAW, INCLUDING COPYRIGHT LAW. 13 3. IN THE CASE OF A FIDUCIARY, IS LIMITED BY THE SCOPE OF THE 14 FIDUCIARY'S DUTIES. 15 4. MAY NOT BE USED TO IMPERSONATE THE USER. 16 C. A FIDUCIARY WITH AUTHORITY OVER THE PROPERTY OF A DECEDENT, 17 PROTECTED PERSON, PRINCIPAL OR SETTLOR HAS THE RIGHT TO ACCESS ANY DIGITAL 18 ASSET IN WHICH THE DECEDENT, PROTECTED PERSON, PRINCIPAL OR SETTLOR HAD A 19 RIGHT OR INTEREST AND THAT IS NOT HELD BY A CUSTODIAN OR SUBJECT TO A 20 TERMS-OF-SERVICE AGREEMENT. 21 D. A FIDUCIARY ACTING WITHIN THE SCOPE OF THE FIDUCIARY'S DUTIES IS AN 22 AUTHORIZED USER OF THE PROPERTY OF THE DECEDENT, PROTECTED PERSON, PRINCIPAL 23 OR SETTLOR FOR THE PURPOSE OF APPLICABLE COMPUTER-FRAUD AND 24 UNAUTHORIZED-COMPUTER-ACCESS LAWS, INCLUDING SECTION 13-2316. 25 E. A FIDUCIARY WITH AUTHORITY OVER THE TANGIBLE, PERSONAL PROPERTY OF 26 A DECEDENT, PROTECTED PERSON, PRINCIPAL OR SETTLOR: 27 1. HAS THE RIGHT TO ACCESS THE PROPERTY AND ANY DIGITAL ASSET STORED 28 IN IT. 29 2. IS AN AUTHORIZED USER FOR THE PURPOSE OF COMPUTER-FRAUD AND 30 UNAUTHORIZED-COMPUTER-ACCESS LAWS, INCLUDING SECTION 13-2316. 31 F. A CUSTODIAN MAY DISCLOSE INFORMATION IN AN ACCOUNT TO A FIDUCIARY 32 OF THE USER WHEN THE INFORMATION IS REQUIRED TO TERMINATE AN ACCOUNT USED TO 33 ACCESS DIGITAL ASSETS LICENSED TO THE USER. 34 G. A FIDUCIARY OF A USER MAY REQUEST A CUSTODIAN TO TERMINATE THE 35 USER'S ACCOUNT. A REQUEST FOR TERMINATION MUST BE IN WRITING, IN EITHER 36 PHYSICAL OR ELECTRONIC FORM, AND ACCOMPANIED BY ALL OF THE FOLLOWING: 37 1. IF THE USER IS DECEASED, A CERTIFIED COPY OF THE DEATH CERTIFICATE 38 OF THE USER. 39 2. A CERTIFIED COPY OF THE LETTERS TESTAMENTARY OF THE REPRESENTATIVE, 40 SMALL-ESTATE AFFIDAVIT, COURT ORDER, POWER OF ATTORNEY OR TRUST GIVING THE 41 FIDUCIARY AUTHORITY OVER THE ACCOUNT. 42 3. IF REQUESTED BY THE CUSTODIAN ANY OF THE FOLLOWING: 43 (a) A NUMBER, USERNAME, ADDRESS OR OTHER UNIQUE SUBSCRIBER OR ACCOUNT 44 IDENTIFIER ASSIGNED BY THE CUSTODIAN TO IDENTIFY THE USER'S ACCOUNT. 45 (b) EVIDENCE LINKING THE ACCOUNT TO THE USER. H.B. 2467 - 9 - 1 (c) A FINDING BY THE COURT THAT THE USER HAD A SPECIFIC ACCOUNT WITH 2 THE CUSTODIAN, IDENTIFIABLE BY THE INFORMATION SPECIFIED IN SUBDIVISION (a) 3 OF THIS PARAGRAPH. 4 14-13116. Custodian compliance and immunity 5 A. NOT LATER THAN SIXTY DAYS AFTER RECEIPT OF THE INFORMATION REQUIRED 6 UNDER SECTION 14-13107, 14-13108, 14-13109, 14-13110, 14-13111, 14-13112, 7 14-13113, 14-13114 OR 14-13115, A CUSTODIAN SHALL COMPLY WITH A REQUEST UNDER 8 THIS CHAPTER FROM A FIDUCIARY OR DESIGNATED RECIPIENT TO DISCLOSE DIGITAL 9 ASSETS OR TERMINATE AN ACCOUNT. IF THE CUSTODIAN FAILS TO COMPLY, THE 10 FIDUCIARY OR DESIGNATED RECIPIENT MAY APPLY TO THE COURT FOR AN ORDER 11 DIRECTING COMPLIANCE. 12 B. AN ORDER UNDER SUBSECTION A OF THIS SECTION DIRECTING COMPLIANCE 13 MUST CONTAIN A FINDING THAT COMPLIANCE IS NOT IN VIOLATION OF 18 UNITED 14 STATES CODE SECTION 2702. 15 C. A CUSTODIAN MAY NOTIFY THE USER THAT A REQUEST FOR DISCLOSURE OR TO 16 TERMINATE AN ACCOUNT WAS MADE UNDER THIS CHAPTER. 17 D. A CUSTODIAN MAY DENY A REQUEST UNDER THIS CHAPTER FROM A FIDUCIARY 18 OR DESIGNATED RECIPIENT FOR DISCLOSURE OF DIGITAL ASSETS OR TO TERMINATE AN 19 ACCOUNT IF THE CUSTODIAN IS AWARE OF ANY LAWFUL ACCESS TO THE ACCOUNT 20 FOLLOWING THE RECEIPT OF THE FIDUCIARY'S REQUEST. 21 E. THIS CHAPTER DOES NOT LIMIT A CUSTODIAN'S ABILITY TO OBTAIN OR 22 REQUIRE A FIDUCIARY OR DESIGNATED RECIPIENT REQUESTING DISCLOSURE OR 23 TERMINATION UNDER THIS CHAPTER TO OBTAIN A COURT ORDER THAT DOES ANY OF THE 24 FOLLOWING: 25 1. SPECIFIES THAT AN ACCOUNT BELONGS TO THE PROTECTED PERSON OR 26 PRINCIPAL. 27 2. SPECIFIES THAT THERE IS SUFFICIENT CONSENT FROM THE PROTECTED 28 PERSON OR PRINCIPAL TO SUPPORT THE REQUESTED DISCLOSURE. 29 3. CONTAINS A FINDING REQUIRED BY LAW OTHER THAN THIS CHAPTER. 30 F. A CUSTODIAN AND ITS OFFICERS, EMPLOYEES AND AGENTS ARE IMMUNE FROM 31 LIABILITY FOR AN ACT OR OMISSION DONE IN GOOD FAITH IN COMPLIANCE WITH THIS 32 CHAPTER. 33 14-13117. Uniformity of application and construction 34 IN APPLYING AND CONSTRUING THIS UNIFORM ACT, CONSIDERATION MUST BE 35 GIVEN TO THE NEED TO PROMOTE UNIFORMITY OF THE LAW WITH RESPECT TO ITS 36 SUBJECT MATTER AMONG STATES THAT ENACT IT. 37 14-13118. Relation to electronic signatures in global and 38 national commerce act 39 THIS CHAPTER MODIFIES, LIMITS AND SUPERSEDES THE ELECTRONIC SIGNATURES 40 IN GLOBAL AND NATIONAL COMMERCE ACT, 15 UNITED STATES CODE SECTIONS 7001 41 THROUGH 7031, BUT DOES NOT MODIFY, LIMIT OR SUPERSEDE 15 UNITED STATES CODE 42 SECTION 7001(c) OR AUTHORIZE ELECTRONIC DELIVERY OF ANY OF THE NOTICES 43 DESCRIBED IN 15 UNITED STATES CODE SECTION 7003(b).