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This entry was published on 2016-10-07
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SECTION 13-A-4.1
Fiduciary duty and authority
Estates, Powers & Trusts (EPT) CHAPTER 17-B, ARTICLE 13-A, PART 4
§ 13-A-4.1 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:

(1) the duty of care;

(2) the duty of loyalty; and

(3) the duty of confidentiality.

(b) A fiduciary's or designated recipient's authority with respect to
a digital asset of a user:

(1) except as otherwise provided in section 13-A-2.2, is subject to
the applicable terms of service;

(2) is subject to other applicable law, including copyright law;

(3) in the case of a fiduciary, is limited by the scope of the
fiduciary's duties; and

(4) may 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 this state's law on
unauthorized computer access.

(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 this state's law on
unauthorized computer access.

(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:

(1) if the user is deceased, a copy of the death certificate of the
user;

(2) a certified copy of the letter of appointment of the executor,
administrator, or personal representative or a small-estate affidavit or
court order, power of attorney, or trust giving the fiduciary authority
over the account; and

(3) if requested by the custodian:

(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; or

(C) a finding by the court that the user had a specific account with
the custodian, identifiable by the information specified in item (A).