North Carolina General Statutes 36F-15. Fiduciary duty and authority
(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 North Carolina General Statutes 36F-15
- 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.
- Decedent: A deceased person.
- 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.
- following: when used by way of reference to any section of a statute, shall be construed to mean the section next preceding or next following that in which such reference is made; unless when some other section is expressly designated in such reference. See North Carolina General Statutes 12-3
- Fraud: Intentional deception resulting in injury to another.
- in writing: may be construed to include printing, engraving, lithographing, and any other mode of representing words and letters: Provided, that in all cases where a written signature is required by law, the same shall be in a proper handwriting, or in a proper mark. See North Carolina General Statutes 12-3
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- property: shall include all property, both real and personal. See North Carolina General Statutes 12-3
(2) The duty of loyalty.
(3) The duty of confidentiality.
(b) All of the following 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 N.C. Gen. Stat. § 36F-4, it is subject to the applicable terms of service.
(2) It is subject to other applicable law, including copyright law.
(3) In the case of a fiduciary, it is limited by the scope of the fiduciary’s duties.
(4) It shall not be used to impersonate the user.
(c) A fiduciary with authority over the property of a decedent, ward, principal, or settlor has the right to access any digital asset in which the decedent, ward, principal, or settlor had a right or interest and that is not held by a custodian or subject to a terms-of-service agreement.
(d) A fiduciary acting within the scope of the fiduciary’s duties is an authorized user of the property of the decedent, ward, principal, or settlor for the purpose of applicable computer fraud and unauthorized computer access laws, including N.C. Gen. Stat. § 14-458
(e) A fiduciary with authority over the tangible, personal property of a decedent, ward, principal, or settlor:
(1) Has the right to access the property and any digital asset stored in it; and
(2) Is an authorized user for the purpose of computer fraud and unauthorized-computer-access laws, including N.C. Gen. Stat. § 14-458
(f) 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.
(g) 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 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 letters of administration or letters testamentary of the personal representative, a certified copy of a small estate affidavit filed in accordance with N.C. Gen. Stat. § 28A-25.1(b), a certified copy of a summary administration order described in N.C. Gen. Stat. § 28A-28-3, or a court order, power of attorney, or trust 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 sub-subdivision a. of this subdivision. (2016-53, s. 1.)