California Probate Code 880 – (a) The legal duties imposed on a fiduciary charged with …
(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.
Terms Used In California Probate Code 880
- 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. See California Probate Code 871
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- 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. See California Probate Code 871
- Custodian: means a person that carries, maintains, processes, receives, or stores a digital asset of a user. See California Probate Code 871
- Decedent: A deceased person.
- Designated recipient: means a person chosen by a user using an online tool to administer digital assets of the user. See California Probate Code 871
- Digital asset: means an electronic record in which an individual has a right or interest. See California Probate Code 871
- Electronic: means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. See California Probate Code 871
- Fiduciary: A trustee, executor, or administrator.
- Fiduciary: means an original, additional, or successor personal representative or trustee. See California Probate Code 871
- Information: means data, text, images, videos, sounds, codes, computer programs, software, databases, or other items with like characteristics. See California Probate Code 871
- Instrument: means a will, a document establishing or modifying a trust, a deed, or any other writing that designates a beneficiary or makes a donative transfer of property. See California Probate Code 45
- Personal property: All property that is not real property.
- Property: means anything that may be the subject of ownership and includes both real and personal property and any interest therein. See California Probate Code 62
- Terms-of-service agreement: means an agreement that controls the relationship between a user and a custodian. See California Probate Code 871
- Trust: includes the following:
California Probate Code 82
- User: means a person that has an account with a custodian. See California Probate Code 871
(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).
(Added by Stats. 2016, Ch. 551, Sec. 1. (AB 691) Effective January 1, 2017.)