Kentucky Statutes 395A.150 – Fiduciary duty and authority
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(1) The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including:
(a) The duty of care;
(b) The duty of loyalty; and
(c) The duty of confidentiality.
(2) A fiduciary‘s or designated recipient‘s authority with respect to a digital asset of a user:
(a) Except as otherwise provided in KRS § 395A.040, is subject to the applicable terms of service;
(b) Is subject to other applicable law, including copyright law;
(c) In the case of a fiduciary, is limited by the scope of the fiduciary’s duties; and
(d) May not be used to impersonate the user.
(3) A fiduciary with authority over the property of a decedent, protected person, principal, or settlor has the right to access any digital asset in which the decedent, protected person, principal, or settlor had a right or interest and that is not held by a custodian or subject to a terms-of-service agreement.
(4) A fiduciary acting within the scope of the fiduciary’s duties is an authorized user of the property of the decedent, protected person, principal, or settlor for the purpose of applicable computer fraud and unauthorized computer access laws, including KRS § 434.840 to KRS § 434.860.
(5) A fiduciary with authority over the tangible, personal property of a decedent, protected person, principal, or settlor:
(a) Has the right to access the property and any digital asset stored in it; and
(b) Is an authorized user for the purpose of computer fraud and unauthorized computer access laws, including KRS § 434.840 to KRS § 434.860.
(6) A custodian may disclose information in an account to a fiduciary of the user when the information is required to terminate an account used to access digital assets licensed to the user.
(7) A fiduciary of a user may request a custodian to terminate the user’s account. A request for termination must be in writing, in either physical or electronic form, and accompanied by:
(a) If the user is deceased, a certified copy of the death certificate of the user;
(b) A certified copy of the order of appointment of the personal representative, the order dispensing with administration pursuant to KRS § 395.455, power of attorney, trust, or other court order giving the fiduciary authority over the account; and
(c) If requested by the custodian:
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; or
3. A finding by the court that the user had a specific account with the custodian, identifiable by the information specified in subparagraph 1. of this paragraph.
Effective: July 15, 2020
History: Created 2020 Ky. Acts ch. 63, sec. 14, effective July 15, 2020.
(a) The duty of care;
Terms Used In Kentucky Statutes 395A.150
- Account: means an arrangement under a terms-of-service agreement in which a custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides goods or services to the user. See Kentucky Statutes 395A.020
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- Court: means District Court. See Kentucky Statutes 395A.020
- Custodian: means a person that carries, maintains, processes, receives, or stores a digital asset of a user. See Kentucky Statutes 395A.020
- 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 Kentucky Statutes 395A.020
- Digital asset: means an electronic record in which an individual has a right or interest. See Kentucky Statutes 395A.020
- Electronic: means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. See Kentucky Statutes 395A.020
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Fiduciary: A trustee, executor, or administrator.
- Fiduciary: means an original, additional, or successor personal representative, conservator, agent, or trustee. See Kentucky Statutes 395A.020
- Fraud: Intentional deception resulting in injury to another.
- Information: means data, text, images, videos, sounds, codes, computer programs, software, databases, or the like. See Kentucky Statutes 395A.020
- Personal representative: means an executor, administrator, special administrator, or person that performs substantially the same function under law of this state other than this chapter. See Kentucky Statutes 395A.020
- Principal: means an individual who grants authority to an agent in a power of attorney. See Kentucky Statutes 395A.020
- Protected person: means an individual for whom a conservator has been appointed. See Kentucky Statutes 395A.020
- User: means a person that has an account with a custodian. See Kentucky Statutes 395A.020
(b) The duty of loyalty; and
(c) The duty of confidentiality.
(2) A fiduciary‘s or designated recipient‘s authority with respect to a digital asset of a user:
(a) Except as otherwise provided in KRS § 395A.040, is subject to the applicable terms of service;
(b) Is subject to other applicable law, including copyright law;
(c) In the case of a fiduciary, is limited by the scope of the fiduciary’s duties; and
(d) May not be used to impersonate the user.
(3) A fiduciary with authority over the property of a decedent, protected person, principal, or settlor has the right to access any digital asset in which the decedent, protected person, principal, or settlor had a right or interest and that is not held by a custodian or subject to a terms-of-service agreement.
(4) A fiduciary acting within the scope of the fiduciary’s duties is an authorized user of the property of the decedent, protected person, principal, or settlor for the purpose of applicable computer fraud and unauthorized computer access laws, including KRS § 434.840 to KRS § 434.860.
(5) A fiduciary with authority over the tangible, personal property of a decedent, protected person, principal, or settlor:
(a) Has the right to access the property and any digital asset stored in it; and
(b) Is an authorized user for the purpose of computer fraud and unauthorized computer access laws, including KRS § 434.840 to KRS § 434.860.
(6) A custodian may disclose information in an account to a fiduciary of the user when the information is required to terminate an account used to access digital assets licensed to the user.
(7) A fiduciary of a user may request a custodian to terminate the user’s account. A request for termination must be in writing, in either physical or electronic form, and accompanied by:
(a) If the user is deceased, a certified copy of the death certificate of the user;
(b) A certified copy of the order of appointment of the personal representative, the order dispensing with administration pursuant to KRS § 395.455, power of attorney, trust, or other court order giving the fiduciary authority over the account; and
(c) If requested by the custodian:
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; or
3. A finding by the court that the user had a specific account with the custodian, identifiable by the information specified in subparagraph 1. of this paragraph.
Effective: July 15, 2020
History: Created 2020 Ky. Acts ch. 63, sec. 14, effective July 15, 2020.