senate Bill S4895

2013-2014 Legislative Session

Establishes the "access to digital assets act"

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 08, 2014 referred to judiciary
Apr 30, 2013 referred to judiciary

S4895 - Bill Details

See Assembly Version of this Bill:
A6729
Current Committee:
Senate Judiciary
Law Section:
Estates, Powers and Trusts Law
Laws Affected:
Add Art 10 Part 11 ยงยง10-11.1 - 10-11.8, EPT L

S4895 - Bill Texts

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Establishes the "access to digital assets act"; provides fiduciary access and control over digital property of decedent or protected person.

view sponsor memo
BILL NUMBER:S4895

TITLE OF BILL: An act to amend the estates, powers and trusts law, in
relation to establishing the "access to digital assets act"

PURPOSE OR GENERAL IDEA OF BILL:

The purpose of this bill is to grant fiduciaries the power to access,
manage, distribute, copy or delete digital assets and accounts. The
definition of fiduciary shall be defined in the bill as personal
representatives, trustees, conservators/guardians and agents acting
under a power of attorney.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1 provides definitions

Section 2 provides definitions.

Section 3 addresses that this bill will provide authority to a
fiduciary only.

Section 4 addresses how a personal representative shall control
digital property of a Decedent. The bill provides that the personal
representative may exercise control over the decedent's digital
property to the extent permitted under applicable law and a
term-of-service agreement.

Section 5 addresses how a Conservator/Guardian can be authorized by
the Court in the control of digital property for a protected person.
A Court Order has to be signed and it must address the type of
authority that shall be granted to the Conservator/Guardian.

Section 6 describes the control of digital property by an agent under
the Power of Attorney. The Power of Attorney shall be subject to
terms-of-service agreement and/or governing instrument.

Section 7 addresses that a trustee may exercise control over and
rights in any digital property according to the terms of the Decedents
trust. (See committees concern regarding if there should be any limits
on a trustee's actions.)

Section 8 discusses Digital Property Recovery from Custodian.
Custodian is previously defined in Section I,

Section 8 further provides a fiduciary under the bill to have lawful
consent of the account holder and provides authorization to the
fiduciary under all applicable state and federal statutes. Section 8
addresses that a fiduciary must make a written request and provide the
requested documentation to a Custodian pursuant to subsection (b) and
(c) of Section 8.

Section 9 provides that an interested party may file an objection to
recover of a fiduciary's digital property. The objection by the
interested party must be filed in Court. Pursuant to the objection,
the Court will have a hearing to review the merits of the objection.


Section 10 provides a good faith standard for a custodian who acts
upon the request of a fiduciary for digital property of a Decedent.

Section 12 provides how this bill will relate to the Electronic
Signatures in Global and National Commerce Act.

JUSTIFICATION:

The amount of digital assets accumulated by most individuals has grown
tremendously in recent years. The evolution of online programs has led
to Facebook, Twitter, online banking and a variety of other social
media and internet-related applications. Currently, there are 30
million Facebook accounts that belong to persons who are deceased.
*As the number of digital assets held by the average person increases,
questions surrounding the disposition of these assets upon the
individual's death or incapacity are becoming more common.

Few laws exist on the rights of fiduciaries over digital assets. These
assets, including but not limited to online gaming pieces to photos,
digital music, client lists, bank accounts, bill-paying, etc., have
real value. According to a 2011 survey from McAfee, Intel's
security-technology unit, American consumers valued their digital
assets, on average, at almost 555,000.**

Some Service providers have explicit policies describing what will
happen when an individual dies, others do not. Even where these
policies are included in the terms of service, most consumers click
through these agreements without every reading them.

Online companies believe that preservation of the privacy of their
customers are paramount. However, individuals create estate plans
where they select their executor and/or/trustee. The executor and
trustee are tasked with marshalling the assets, Paying the decedent's
debts and distributing the decedent's assets according to the
decedent's wishes. Digital assets should be considered personal
property and therefore should be allowed to be distributed according
to the wishes of the decedent. Further, this bill will help to
streamline the process for those families that are currently in court
fighting for access to their loved ones accounts.

PRIOR LEGISLATIVE HISTORY:

New Bill

FISCAL IMPLICATIONS:

None

EFFECTIVE DATE:

This act shall take effect on the 180th day after it shall have become
a law. Effective immediately, the addition, amendment and/or repeal of
any rule or regulation necessary for the implementation of this act on
its effective date are authorized to be made and completed oh or
before such effective date.


* Blaha: Craig. "Over 30 Million Accounts on Facebook Belong to Dead
People." - Technoratti Technology. Technornti, Inc., 07 Mar. 2012.

**Greene, kelly. "Passing Down Digital Assets."Wall Street Journal, 31
aug. 2012:n.pag.Web.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4895

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                             April 30, 2013
                               ___________

Introduced  by  Sen.  SAVINO -- read twice and ordered printed, and when
  printed to be committed to the Committee on Judiciary

AN ACT to amend the estates, powers  and  trusts  law,  in  relation  to
  establishing the "access to digital assets act"

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. This act shall be known and may be cited as the "access  to
digital assets act".
  S  2.  Article  10 of the estates, powers and trusts law is amended by
adding a new part 11 to read as follows:
                                 PART 11
                        ACCESS TO DIGITAL ASSETS
SECTION 10-11.1 DEFINITIONS.
        10-11.2 CONTROL OF DIGITAL  PROPERTY  OF  DECEDENT  BY  PERSONAL
                  REPRESENTATIVE.
        10-11.3 CONTROL  OF  DIGITAL  PROPERTY  OF  PROTECTED  PERSON BY
                  CONSERVATOR.
        10-11.4 CONTROL OF DIGITAL PROPERTY  BY  AGENT  UNDER  POWER  OF
                  ATTORNEY.
        10-11.5 CONTROL OF DIGITAL PROPERTY BY TRUSTEE.
        10-11.6 RECOVERY OF DIGITAL PROPERTY FROM CUSTODIAN.
        10-11.7 OBJECTION TO RECOVERY OF DIGITAL PROPERTY BY FIDUCIARY.
        10-11.8 CUSTODIAN IMMUNITY.
S 10-11.1 DEFINITIONS.
  AS  USED  IN  THIS  PART, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING
MEANINGS:
  (A) "ACCOUNT HOLDER" MEANS A DECEDENT, PROTECTED PERSON, PRINCIPAL, OR
SETTLOR WHO HAS TERMS-OF-SERVICE AGREEMENT WITH A CUSTODIAN.
  (B) "AGENT" MEANS AN ATTORNEY-IN-FACT GRANTED AUTHORITY UNDER A  DURA-
BLE OR NONDURABLE POWER OF ATTORNEY.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10200-01-3

S. 4895                             2

  (C)  "CONSERVATOR"  MEANS  A  PERSON  THAT  IS APPOINTED BY A COURT TO
MANAGE THE ESTATE OF AN INDIVIDUAL. THE TERM INCLUDES A LIMITED  CONSER-
VATOR.
  (D)  "CUSTODIAN"  MEANS  A  PERSON  THAT ELECTRONICALLY STORES DIGITAL
PROPERTY OF AN ACCOUNT HOLDER OR  OTHERWISE  HAS  CONTROL  OVER  DIGITAL
PROPERTY OF THE ACCOUNT HOLDER.
  (E)  "DIGITAL ACCOUNT" MEANS AN ELECTRONIC SYSTEM FOR CREATING, GENER-
ATING, SENDING, RECEIVING, STORING, DISPLAYING, OR  PROCESSING  INFORMA-
TION WHICH PROVIDES ACCESS TO A DIGITAL ASSET OR A DIGITAL SERVICE.
  (F) "DIGITAL ASSET" MEANS INFORMATION CREATED, GENERATED, SENT, COMMU-
NICATED, RECEIVED, OR STORED BY ELECTRONIC MEANS ON A DIGITAL SERVICE OR
DIGITAL  DEVICE; THE TERM INCLUDES A USERNAME, WORD, CHARACTER, CODE, OR
CONTRACT RIGHT UNDER THE TERMS-OF-SERVICE AGREEMENT.
  (G) "DIGITAL DEVICE" MEANS AN  ELECTRONIC  DEVICE  THAT  CAN  RECEIVE,
STORE, PROCESS OR SEND DIGITAL INFORMATION.
  (H)  "DIGITAL  PROPERTY"  MEANS  THE  OWNERSHIP  AND MANAGEMENT OF AND
RIGHTS RELATED TO DIGITAL ACCOUNT AND DIGITAL ASSET.
  (I) "DIGITAL SERVICE" MEANS THE DELIVERY OF DIGITAL INFORMATION  (SUCH
AS DATA OR CONTENT) AND TRANSACTIONAL SERVICES (SUCH AS ONLINE FORMS AND
BENEFITS APPLICATIONS) ACROSS A VARIETY OF PLATFORMS, DEVICES AND DELIV-
ERY  MECHANISMS  (SUCH  AS  WEBSITES,  MOBILE  APPLICATIONS,  AND SOCIAL
MEDIA).
  (J) "ELECTRONIC"  MEANS  RELATING  TO  TECHNOLOGY  HAVING  ELECTRICAL,
DIGITAL,  MAGNETIC, WIRELESS, OPTICAL, ELECTROMAGNETIC, OR SIMILAR CAPA-
BILITIES.
  (K) "GOVERNING INSTRUMENT" MEANS A WILL, TRUST, INSTRUMENT CREATING OR
EXERCISING POWER OF ATTORNEY, OR OTHER DISPOSITIVE, APPOINTIVE, OR NOMI-
NATIVE INSTRUMENT OF ANY SIMILAR TYPE.
  (L) "INFORMATION" MEANS DATA, TEXT, IMAGES,  SOUNDS,  CODES,  COMPUTER
PROGRAMS, SOFTWARE, DATABASES, OR THE LIKE.
  (M)  "INTERESTED  PERSON"  MEANS  HEIRS,  DEVISEES, CHILDREN, SPOUSES,
CREDITORS, BENEFICIARIES AND ANY OTHERS HAVING A PROPERTY  RIGHT  IN  OR
CLAIM  AGAINST  A  TRUST  ESTATE  OR  THE  ESTATE OF A DECEDENT, WARD OR
PROTECTED PERSON WHICH MAY  BE  AFFECTED  BY  THE  PROCEEDING.  IT  ALSO
INCLUDES  PERSONS  HAVING PRIORITY FOR APPOINTMENT AS PERSONAL REPRESEN-
TATIVE, AND OTHER FIDUCIARIES  REPRESENTING  INTERESTED  PERSONS.    THE
MEANING  AS  IT RELATES TO PARTICULAR PERSONS MAY VARY FROM TIME TO TIME
AND MUST BE DETERMINED ACCORDING TO  THE  PARTICULAR  PURPOSES  OF,  AND
MATTER  INVOLVED IN, ANY PROCEEDING. IN A CONSERVATORSHIP PROCEEDING, IT
ALSO INCLUDES ANY GOVERNMENTAL AGENCY PAYING OR PLANNING TO PAY BENEFITS
TO THE WARD OR PROTECTED PERSON AND ANY PUBLIC OR CHARITABLE AGENCY THAT
REGULARLY CONCERNS ITSELF WITH METHODS  FOR  PREVENTING  UNNECESSARY  OR
OVERLY  INTRUSIVE  COURT INTERVENTION IN THE AFFAIRS OF PERSONS FOR WHOM
PROTECTIVE ORDERS MAY BE SOUGHT AND THAT SEEKS  TO  PARTICIPATE  IN  THE
PROCEEDINGS.
  (N)  "PRINCIPAL"  MEANS AN INDIVIDUAL WHO GRANTS AUTHORITY TO AN AGENT
IN A POWER OF ATTORNEY.
  (O) "PROPERTY" MEANS ANYTHING THAT MAY BE THE  SUBJECT  OF  OWNERSHIP,
AND IS REAL OR PERSONAL PROPERTY.  THE TERM INCLUDES DIGITAL PROPERTY.
  (P) "PROTECTED PERSON" MEANS AN INDIVIDUAL FOR WHOM A PROTECTIVE ORDER
HAS BEEN MADE.
  (Q)  "PROTECTIVE  ORDER"  MEANS  AN  ORDER APPOINTING A CONSERVATOR OR
ANOTHER ORDER RELATED TO MANAGEMENT OF A PROTECTED PERSON'S PROPERTY.
  (R) "RECORD" MEANS INFORMATION THAT IS INSCRIBED ON A TANGIBLE  MEDIUM
OR THAT IS STORED IN AN ELECTRONIC OR OTHER MEDIUM AND IS RETRIEVABLE IN
PERCEIVABLE FORM.

S. 4895                             3

  (S)  "TERMS-OF-SERVICE  AGREEMENT"  MEANS A CONTRACT THAT CONTROLS THE
RELATIONSHIP BETWEEN  AN  ACCOUNT  HOLDER  AND  A  CUSTODIAN.  THE  TERM
INCLUDES A TERMS-OF-USE AGREEMENT.
  (T) "TRUSTEE" MEANS A FIDUCIARY WITH LEGAL TITLE TO ASSETS PURSUANT TO
AN AGREEMENT THAT CREATES A BENEFICIAL INTEREST IN OTHERS.
S 10-11.2 CONTROL  OF DIGITAL PROPERTY OF DECEDENT BY PERSONAL REPRESEN-
            TATIVE
  EXCEPT AS A TESTATOR OTHERWISE PROVIDED  BY  WILL  OR  UNTIL  A  COURT
OTHERWISE  ORDERS,  A PERSONAL REPRESENTATIVE, ACTING REASONABLY FOR THE
BENEFIT OF  THE  INTERESTED  PERSONS,  MAY  EXERCISE  CONTROL  OVER  THE
DECEDENT'S DIGITAL PROPERTY TO THE EXTENT PERMITTED UNDER APPLICABLE LAW
AND A TERMS-OF-SERVICE AGREEMENT.
S 10-11.3 CONTROL OF DIGITAL PROPERTY OF PROTECTED PERSON BY CONSERVATOR
  (A) AT THE INITIAL HEARING ON AN APPLICATION TO APPOINT A CONSERVATOR,
OR LATER APPLICATION BY A CONSERVATOR, THE COURT MAY EXPRESSLY AUTHORIZE
THE  CONSERVATOR  TO  DO  ONE  OR  MORE OF THE FOLLOWING, SUBJECT TO THE
PROVISIONS OF THE APPLICABLE TERMS-OF-SERVICE AGREEMENT:
  (1) EXERCISE CONTROL OVER DIGITAL PROPERTY OF THE PROTECTED PERSON;
  (2) EXERCISE A RIGHT IN DIGITAL PROPERTY OF THE PROTECTED PERSON; AND
  (3) CHANGE A GOVERNING INSTRUMENT AFFECTING THE  DIGITAL  PROPERTY  OF
THE PROTECTED PERSON.
  (B)  IN AUTHORIZING A CONSERVATOR'S POWERS UNDER PARAGRAPH (A) OF THIS
SECTION, THE COURT SHALL CONSIDER THE  PROTECTED  PERSON'S  INTENT  WITH
RESPECT TO THOSE POWERS TO THE EXTENT THAT INTENT CAN BE ASCERTAINED.
S 10-11.4 CONTROL OF DIGITAL PROPERTY BY AGENT UNDER POWER OF ATTORNEY
  IF  A  POWER  OF ATTORNEY GRANTS AUTHORITY TO AN AGENT AND EXERCISE OF
AUTHORITY IS NOT OTHERWISE PROHIBITED BY A TERMS-OF-SERVICE AGREEMENT OR
A GOVERNING INSTRUMENT TO WHICH THE DIGITAL PROPERTY OF THE PRINCIPAL IS
SUBJECT, THE AGENT MAY:
  (A) EXERCISE CONTROL OVER THE DIGITAL PROPERTY;
  (B) EXERCISE ANY RIGHT IN THE DIGITAL PROPERTY; AND
  (C) CHANGE A GOVERNING INSTRUMENT AFFECTING THE DIGITAL PROPERTY.
S 10-11.5 CONTROL OF DIGITAL PROPERTY BY TRUSTEE
  A TRUSTEE MAY EXERCISE CONTROL OVER AND RIGHTS IN ANY DIGITAL PROPERTY
ACCORDING TO THE TERMS OF THE TRUST.
S 10-11.6 RECOVERY OF DIGITAL PROPERTY FROM CUSTODIAN
  (A) ON RECEIPT OF A WRITTEN REQUEST BY A FIDUCIARY WITH AUTHORITY OVER
THE DIGITAL PROPERTY OF ANOTHER INDIVIDUAL AND AN AUTHORIZED USER  UNDER
ALL APPLICABLE STATE AND FEDERAL STATUTES, FOR ACCESS TO DIGITAL PROPER-
TY,  OWNERSHIP  OF  DIGITAL  PROPERTY,  OR  A COPY OF A DIGITAL ASSET, A
CUSTODIAN WITH CONTROL OF THE DIGITAL PROPERTY OR  ASSET  SHALL  PROVIDE
THE FIDUCIARY THE REQUESTED ACCESS, OWNERSHIP, OR COPY, IF THE FIDUCIARY
COMPLIES WITH PARAGRAPH (B) OF THIS SECTION.
  (B)  A  REQUEST  MADE PURSUANT TO THIS SECTION SHALL BE IN WRITING AND
IF:
  (1) BY A PERSONAL REPRESENTATIVE, THE REQUEST MUST BE ACCOMPANIED BY A
CERTIFIED COPY OF THE LETTER OF APPOINTMENT OF  THE  PERSONAL  REPRESEN-
TATIVE WHICH GRANTS AUTHORITY OVER THE DIGITAL PROPERTY;
  (2)  BY  A CONSERVATOR, THE REQUEST MUST BE ACCOMPANIED BY A CERTIFIED
COPY OF THE COURT ORDER THAT GIVES THE CONSERVATOR  AUTHORITY  OVER  THE
DIGITAL PROPERTY;
  (3)  BY  AN AGENT, THE REQUEST MUST BE ACCOMPANIED BY A CERTIFIED COPY
OF THE POWER OF ATTORNEY THAT AUTHORIZES THE AGENT TO EXERCISE AUTHORITY
OVER THE DIGITAL PROPERTY; OR

S. 4895                             4

  (4) BY A TRUSTEE, THE REQUEST MUST BE ACCOMPANIED BY A CERTIFIED  COPY
OF THE TRUST INSTRUMENT THAT AUTHORIZES THE TRUSTEE TO EXERCISE AUTHORI-
TY OVER THE DIGITAL PROPERTY.
  (C)  A  CUSTODIAN SHALL COMPLY NOT LATER THAN SIXTY DAYS AFTER RECEIPT
OF THE REQUEST MADE UNDER  THIS  SECTION.  IF  THE  CUSTODIAN  FAILS  TO
COMPLY,  THE  FIDUCIARY  MAY  APPLY  TO THE COURT FOR AN ORDER DIRECTING
COMPLIANCE.
  (D) A CERTIFIED COPY OF A TRUST OR POWER  OF  ATTORNEY  MEANS  A  COPY
ACCOMPANIED  BY  AN AFFIDAVIT BY WHICH THE AFFIANT ATTESTS THAT THE COPY
IS A TRUE, EXACT, COMPLETE AND UNALTERED PHOTOCOPY OF THE ORIGINAL,  AND
THAT  TO  THE  BEST OF THE AFFIANT'S KNOWLEDGE, SAID DOCUMENT REMAINS IN
FULL FORCE AND EFFECT.
S 10-11.7 OBJECTION TO RECOVERY OF DIGITAL PROPERTY BY FIDUCIARY
  (A) AN INTERESTED PARTY MAY FILE WITH THE COURT WITH JURISDICTION OVER
THE ACCOUNT  HOLDER  OR  THE  FIDUCIARY,  A  WRITTEN  OBJECTION  TO  THE
FIDUCIARY'S  REQUEST  FOR  CONTROL  OVER  OR THE FIDUCIARY'S EXERCISE OF
CONTINUED CONTROL OVER DIGITAL PROPERTY.
  (B) ON THE FILING OF AN OBJECTION UNDER PARAGRAPH (A) OF THIS SECTION,
THE COURT SHALL ORDER A HEARING ON THE OBJECTION AT LEAST  FIFTEEN  DAYS
AND NOT LATER THAN SIXTY DAYS AFTER THE FILING.
  (C)  AT A HEARING UNDER PARAGRAPH (B) OF THIS SECTION, THE COURT SHALL
CONSIDER THE OBJECTION AND MAY  ORDER  THE  FIDUCIARY  NOT  TO  EXERCISE
CONTROL OR ANY OTHER RIGHT OVER THE DIGITAL PROPERTY.
S 10-11.8 CUSTODIAN IMMUNITY
  (A)  A  CUSTODIAN  IS  IMMUNE  FROM  LIABILITY  FOR ANY ACTION MADE IN
COMPLIANCE WITH SECTION 10-11.6 OF THIS PART.
  (B) A CUSTODIAN ACTING IN GOOD FAITH IS IMMUNE  FROM  CIVIL  LIABILITY
FOR  THE  CUSTODIAN'S  ACCIDENTAL  DESTRUCTION  OF  ANY DIGITAL PROPERTY
SUBJECT TO THIS PART.
  S 3. This act shall take effect on the one hundred eightieth day after
it shall have become a law.  Effective immediately, the addition, amend-
ment and/or repeal of any rule or regulation necessary for the implemen-
tation of this act on its effective date are authorized to be  made  and
completed on or before such effective date.

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