Montana Code 72-31-414. Fiduciary duty and authority
72-31-414. Fiduciary duty and authority. (1) The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including:
Terms Used In Montana Code 72-31-414
- 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 Montana Code 72-31-402
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- Court: means the district court having jurisdiction in matters relating to the content of this part. See Montana Code 72-31-402
- Custodian: means a person that carries, maintains, processes, receives, or stores a digital asset of a user. See Montana Code 72-31-402
- 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 Montana Code 72-31-402
- Digital asset: means an electronic record in which an individual has a right or interest. See Montana Code 72-31-402
- Electronic: means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. See Montana Code 72-31-402
- Fiduciary: A trustee, executor, or administrator.
- Fiduciary: means an original, additional, or successor personal representative, conservator, agent, or trustee. See Montana Code 72-31-402
- Information: means data, text, images, videos, sounds, codes, computer programs, software, databases, or the like. See Montana Code 72-31-402
- Person: means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity. See Montana Code 72-31-402
- Personal property: All property that is not real property.
- Personal property: means money, goods, chattels, things in action, and evidences of debt. See Montana Code 1-1-205
- Principal: means an individual who grants authority to an agent in a power of attorney. See Montana Code 72-31-402
- Property: means real and personal property. See Montana Code 1-1-205
- Protected person: means an individual for whom a conservator has been appointed. See Montana Code 72-31-402
- Terms-of-service agreement: means an agreement that controls the relationship between a user and a custodian. See Montana Code 72-31-402
- User: means a person that has an account with a custodian. See Montana Code 72-31-402
- Writing: includes printing. See Montana Code 1-1-203
(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 72-31-405, 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 45-6-311.
(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 45-6-311.
(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 letter of appointment of the representative or a collection of personal property affidavit or court order, court order, power of attorney, or trust giving the fiduciary authority over the account; and
(c)if requested by the custodian:
(i)a number, user name, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
(ii)evidence linking the account to the user; or
(iii)a finding by the court that the user had a specific account with the custodian, identifiable by the information specified in subsection (7)(c)(i).