2020 Pennsylvania Consolidated & Unconsolidated Statutes
Act 72 - DECEDENTS, ESTATES AND FIDUCIARIES (20 PA.C.S.) - OMNIBUS AMENDMENTS
Session of 2020
No. 2020-72
SB 320
AN ACT
Amending Title 20 (Decedents, Estates and Fiduciaries) of the Pennsylvania Consolidated Statutes, enacting the Revised Uniform Fiduciary Access to Digital Assets Act; providing for user direction and agreements, for disclosure of digital assets and electronic communications, for functions of fiduciaries and for compliance and immunity for custodians of digital assets and electronic communications; and making conforming amendments.
The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows:
Section 1. Section 711 of Title 20 of the Pennsylvania Consolidated Statutes is amended by adding a paragraph to read:
§ 711. Mandatory exercise of jurisdiction through orphans' court division in general.
Except as provided in section 712 (relating to nonmandatory exercise of jurisdiction through the orphans' court division) and section 713 (relating to special provisions for Philadelphia County), the jurisdiction of the court of common pleas over the following shall be exercised through its orphans' court division:
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(23) Digital assets.--All matters pertaining to Chapter 39 (relating to uniform fiduciary access to digital assets).
Section 2. Title 20 is amended by adding a chapter to read:
CHAPTER 39
UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS
Sec.
3901. Short title of chapter.
3902. Definitions.
3903. Applicability.
3904. User direction for disclosure of digital assets.
3905. Terms-of-service agreement.
3906. Procedure for disclosing digital assets.
3907. Disclosure of content of electronic communications of deceased user.
3908. Disclosure of other digital assets of deceased user.
3909. Disclosure of content of electronic communications of principal.
3910. Disclosure of other digital assets of principal.
3911. Disclosure of digital assets held in trust when trustee is original user.
3912. Disclosure of contents of electronic communications held in trust when trustee not original user.
3913. Disclosure of other digital assets held in trust when trustee not original user.
3914. Disclosure of digital assets to guardian of the estate.
3915. Fiduciary duty and authority.
3916. Custodian compliance and immunity.
3917. Uniformity of application and construction.
3918. Relation to Electronic Signatures in Global and National Commerce Act.
§ 3901. Short title of chapter.
This chapter may be cited as the Revised Uniform Fiduciary Access to Digital Assets Act.
§ 3902. Definitions.
The following words and phrases when used in this chapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:
"Account." An arrangement under a terms-of-service agreement in which a custodian:
(1) carries, maintains, processes, receives or stores a digital asset of the user; or
(2) provides goods or services to the user.
"Agent." As defined in section 5601(f) (relating to general provisions).
"Carries." Engages in the transmission of an electronic communication.
"Catalog of electronic communications." Information which identifies:
(1) each person that has had an electronic communication with a user;
(2) the time and date of the electronic communication; and
(3) the electronic address of the person under paragraph (1).
"Content of an electronic communication." Information concerning the substance or meaning of the electronic communication which:
(1) has been sent or received by a user;
(2) is in electronic storage by a custodian providing an electronic communication service to the public or is carried or maintained by a custodian providing a remote computing service to the public; and
(3) is not readily accessible to the public.
"Custodian." A person that carries, maintains, processes, receives or stores a digital asset of a user.
"Designated recipient." A person chosen by a user using an online tool to administer digital assets of the user.
"Digital asset." An electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record.
"Electronic." Relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities.
"Electronic communication." As defined in 18 U.S.C. § 2510(12) (relating to definitions).
"Electronic communication service." A custodian that provides to a user the ability to send or receive an electronic communication.
"Electronic communications system." As defined in 18 U.S.C. § 2510(14).
"Guardian of the estate." A person appointed by a court to manage the estate of a living individual. The term includes a limited guardian of the estate.
"Information." Data, text, images, videos, sounds, codes, computer programs, software, databases or the like.
"Online tool." An electronic service provided by a custodian which allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person.
"Person." An individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency or instrumentality or other legal entity.
"Power of attorney." A record which grants an agent authority to act in the place of a principal.
"Principal." An individual who grants authority to an agent in a power of attorney.
"Protected person." An individual for whom a guardian of the estate has been appointed. The term includes an individual for whom an application for the appointment of a guardian of the estate is pending.
"Record." Information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
"Remote computing service." A custodian that provides to a user computer-processing services or the storage of digital assets by means of an electronic communications system.
"Terms-of-service agreement." An agreement which controls the relationship between a user and a custodian.
"Trustee." A fiduciary with legal title to property under an agreement or declaration which creates a beneficial interest in another. The term includes a successor trustee.
"User." A person that has an account with a custodian.
§ 3903. Applicability.
(a) Time.--This chapter applies to:
(1) a fiduciary acting under a will or power of attorney executed before, on or after the effective date of this section;
(2) a personal representative acting for a decedent who died before, on or after the effective date of this section;
(3) a proceeding for the appointment of a guardian of the estate commenced before, on or after the effective date of this section; and
(4) a trustee acting under a trust created before, on or after the effective date of this section.
(b) Residence of user.--This chapter applies to a custodian if the user resides in this Commonwealth or resided in this Commonwealth at the time of the user's death.
(c) Employers.--This chapter does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer's business.
§ 3904. User direction for disclosure of digital assets.
(a) Use of online tool.--
(1) A user may use an online tool to direct the custodian to disclose or not disclose some or all of the user's digital assets, including the content of electronic communications.
(2) If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney or other record.
(b) Nonuse of online tool.--If a user has not used an online tool to give direction under subsection (a) or if the custodian has not provided an online tool, the user may, in a will, trust, power of attorney or other record, allow or prohibit disclosure to a fiduciary of some or all of the user's digital assets, including the content of electronic communications sent or received by the user.
(c) User's direction.--A user's direction under subsection (a) or (b) overrides a contrary provision in a terms-of-service agreement which does not require the user to act affirmatively and distinctly from the user's assent to the terms of service.
§ 3905. Terms-of-service agreement.
(a) Alteration of rights under this chapter.--This chapter does not change nor impair a right of a custodian or a user under a terms-of-service agreement to access and use digital assets of the user.
(b) Additional rights under this chapter.--This chapter does not give a fiduciary or designated recipient any new or expanded rights other than those held by the user for whom or for whose estate the fiduciary acts or represents.
(c) Absence of direction.--A fiduciary's access to digital assets may be modified or eliminated by a user, Federal law or a terms-of-service agreement if the user has not provided direction under section 3904 (relating to user direction for disclosure of digital assets).
§ 3906. Procedure for disclosing digital assets.
(a) Authority of custodian.--When disclosing digital assets of a user under this chapter, the custodian has the sole discretion to:
(1) grant a fiduciary or designated recipient full access to the user's account;
(2) grant a fiduciary or designated recipient partial access to the user's account sufficient to perform the tasks with which the fiduciary or designated recipient is charged; or
(3) provide a fiduciary or designated recipient a copy in a record of any digital asset which, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account.
(b) Charge.--A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under this chapter.
(c) Deleted digital assets.--A custodian need not disclose under this chapter a digital asset deleted by a user.
(d) Segregation.--If a user directs or a fiduciary requests a custodian to disclose under this chapter some but not all of the user's digital assets, the custodian need not disclose the digital assets if segregation of the digital assets would impose an undue burden on the custodian. If the custodian believes the direction or request imposes an undue burden, the custodian or fiduciary may seek an order from the court to do any of the following:
(1) Disclose a subset limited by date of the user's digital assets.
(2) Disclose all of the user's digital assets to the fiduciary or designated recipient.
(3) Disclose none of the user's digital assets.
(4) Disclose all of the user's digital assets to the court for review in camera.
§ 3907. Disclosure of content of electronic communications of deceased user.
If a deceased user consented to or a court directs disclosure of the content of electronic communications of the user, the custodian shall disclose to the personal representative of the estate of the user the content of an electronic communication sent or received by the user if the personal representative gives the custodian:
(1) a written request for disclosure in physical or electronic form;
(2) a certified copy of the death certificate of the user;
(3) a certified copy of the letters;
(4) unless the user provided direction using an online tool, a copy of the user's will, trust, power of attorney or other record evidencing the user's consent to disclosure of the content of electronic communications; and
(5) if requested by the custodian:
(i) any number, username, 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:
(A) the user had a specific account with the custodian, identifiable by the information specified in subparagraph (i);
(B) disclosure of the content of electronic communications of the user would not violate 18 U.S.C. Ch. 121 (relating to stored wire and electronic communications and transactional records access), section 222 of the Communications Act of 1934 (48 Stat. 1064, 47 U.S.C. § 222) or other applicable law;
(C) unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications; or
(D) disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.
§ 3908. Disclosure of other digital assets of deceased user.
(a) Obligations of representative.--Unless the user prohibited disclosure of digital assets or the court directs otherwise, a custodian shall disclose to the personal representative of the estate of a deceased user a catalog of electronic communications sent or received by the user and any digital assets other than the content of electronic communications of the user, if the personal representative gives the custodian:
(1) a written request for disclosure in physical or electronic form;
(2) a certified copy of the death certificate of the user;
(3) a certified copy of the letters; and
(4) if requested by the custodian:
(i) any number, username, 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;
(iii) an affidavit by the personal representative stating that disclosure of the user's digital assets is reasonably necessary for administration of the estate; or
(iv) a finding of the court that:
(A) the user had a specific account with the custodian identifiable by the information specified in subparagraph (i); or
(B) disclosure of the user's digital assets is reasonably necessary for administration of the estate.
(b) Finding of the court.--For the purposes of disclosure to the personal representative of the estate of a deceased user of a catalog of electronic communications, the issuance of letters testamentary or letters of administration to the personal representative by a register under section 901 (relating to register's jurisdiction) shall, unless otherwise provided by rules of court or a court order, have the same force and effect as a finding of the court under subsection (a)(4)(iv) and section 3916(e) (relating to custodian compliance and immunity), if the personal representative:
(1) files with the register an affidavit subject to penalties under 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities) setting forth the information required by subsection (a)(4)(i), (ii) and (iii) regarding records of electronic communications in the custody or control of the custodian; and
(2) upon request, provides to the custodian a copy of the affidavit bearing evidence of filing with the register.
(c) Form of affidavit.--The affidavit required by subsection (a)(4)(iii) or (b)(1) may be provided by:
(1) an averment in the petition under section 3153 (relating to contents of petition) or the affidavit under section 3154 (relating to affidavit and oath); or
(2) a supplement to the petition under section 3153 or the affidavit under section 3154 which is filed with and sworn before the register.
§ 3909. Disclosure of content of electronic communications of principal.
To the extent a power of attorney expressly grants an agent authority over the content of electronic communications sent or received by the principal and unless directed otherwise by the principal or the court, a custodian shall disclose to the agent the content of an electronic communication if the agent gives the custodian:
(1) a written request for disclosure in physical or electronic form;
(2) an original or a copy of the power of attorney expressly granting the agent authority over the content of electronic communications of the principal;
(3) a certification by the agent, under penalty of perjury, that the power of attorney is in effect; and
(4) if requested by the custodian:
(i) any number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the principal's account; or
(ii) evidence linking the account to the principal.
§ 3910. Disclosure of other digital assets of principal.
Unless otherwise ordered by the court, directed by the principal or provided by a power of attorney, a custodian shall disclose to an agent with specific authority over digital assets or general authority to act on behalf of a principal a catalog of electronic communications sent or received by the principal and any digital assets other than the content of electronic communications of the principal if the agent gives the custodian:
(1) a written request for disclosure in physical or electronic form;
(2) an original or a copy of the power of attorney that gives the agent specific authority over digital assets or general authority to act on behalf of the principal;
(3) a certification by the agent, under penalty of perjury, that the power of attorney is in effect under section 5606 (relating to proof of continuance of powers of attorney by affidavit); and
(4) if requested by the custodian:
(i) any number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the principal's account; or
(ii) evidence linking the account to the principal.
§ 3911. Disclosure of digital assets held in trust when trustee is original user.
Unless otherwise ordered by the court or provided in a trust, a custodian shall disclose to a trustee that is an original user of an account any digital asset of the account held in trust, including a catalog of electronic communications of the trustee and the content of electronic communications.
§ 3912. Disclosure of contents of electronic communications held in trust when trustee not original user.
Unless otherwise ordered by the court, directed by the user or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account the content of an electronic communication sent or received by an original or successor user and carried, maintained, processed, received or stored by the custodian in the account of the trust if the trustee gives the custodian:
(1) a written request for disclosure in physical or electronic form;
(2) a certified copy of the trust instrument or a certification of the trust under section 7790.3 (relating to certification of trust - UTC 1013), which includes consent to disclosure of the content of electronic communications to the trustee;
(3) a certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and
(4) if requested by the custodian:
(i) any number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the trust's account; or
(ii) evidence linking the account to the trust.
§ 3913. Disclosure of other digital assets held in trust when trustee not original user.
Unless otherwise ordered by the court, directed by the user or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account a catalog of electronic communications sent or received by an original or successor user and stored, carried or maintained by the custodian in an account of the trust and any digital assets, other than the content of electronic communications, in which the trust has a right or interest if the trustee gives the custodian:
(1) a written request for disclosure in physical or electronic form;
(2) a certified copy of the trust instrument or a certification of the trust under section 7790.3 (relating to certification of trust - UTC 1013);
(3) a certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and
(4) if requested by the custodian:
(i) any number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the trust's account; or
(ii) evidence linking the account to the trust.
§ 3914. Disclosure of digital assets to guardian of the estate.
(a) Access.--After an opportunity for a hearing, the court may grant a guardian of the estate access to the digital assets of a protected person.
(b) Disclosure.--Unless otherwise ordered by the court or directed by the user, a custodian shall disclose to a guardian of the estate the catalog of electronic communications sent or received by the protected person and any digital assets, other than the content of electronic communications, in which the protected person has a right or interest if the guardian of the estate gives the custodian:
(1) a written request for disclosure in physical or electronic form;
(2) a certified copy of the court order which gives the guardian of the estate authority over the digital assets of the protected person; and
(3) if requested by the custodian:
(i) any number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the account of the protected person; or
(ii) evidence linking the account to the protected person.
(c) Account activity.--A guardian of the estate with general authority to manage the assets of a protected person may request a custodian of the digital assets of the protected person to suspend or terminate an account of the protected person for good cause. A request made under this subsection must be accompanied by a certified copy of the court order giving the guardian of the estate authority over the protected person's property.
§ 3915. Fiduciary duty and authority.
(a) Duties.--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) Authority.--A fiduciary's authority with respect to a digital asset of a user:
(1) except as otherwise provided in section 3904 (relating to user direction for disclosure of digital assets), is subject to the applicable terms of service;
(2) is subject to other applicable law, including copyright law;
(3) is limited by the scope of the fiduciary's duties; and
(4) may not be used to impersonate the user.
(c) Access.--A fiduciary with authority over the property of a decedent, protected person, principal or settlor has the right to access any digital asset:
(1) in which the decedent, protected person, principal or settlor had a right or interest; and
(2) which is not held by a custodian or subject to a terms-of-service agreement.
(d) Authorized user.--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 18 Pa.C.S. Ch. 76 (relating to computer offenses).
(e) Tangible personal property.--A fiduciary with authority over the tangible personal property of a decedent, protected person, principal or settlor:
(1) has the right to access the property and any digital asset stored in the property; and
(2) is an authorized user for the purpose of computer fraud and unauthorized computer access laws, including 18 Pa.C.S. Ch. 76.
(f) Disclosure by custodian.--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) Termination of account.--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 be accompanied by:
(1) if the user is deceased, a certified copy of the death certificate of the user;
(2) a certified copy of the letters, court order, power of attorney or trust giving the fiduciary authority over the account; and
(3) if requested by the custodian:
(i) any number, username, 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 subparagraph (i).
§ 3916. Custodian compliance and immunity.
(a) Requirement.--Not later than 60 days after receipt of the information required under sections 3907 (relating to disclosure of content of electronic communications of deceased user), 3908 (relating to disclosure of other digital assets of deceased user), 3909 (relating to disclosure of content of electronic communications of principal), 3910 (relating to disclosure of other digital assets of principal), 3911 (relating to disclosure of digital assets held in trust when trustee is original user), 3912 (relating to disclosure of contents of electronic communications held in trust when trustee not original user), 3913 (relating to disclosure of other digital assets held in trust when trustee not original user), 3914 (relating to disclosure of digital assets to guardian of the estate) and 3915 (relating to fiduciary duty and authority), a custodian shall comply with a request under this chapter from a fiduciary or designated recipient to disclose digital assets or terminate an account. If the custodian fails to comply, the fiduciary or designated representative may apply to the court for an order directing compliance.
(b) Court order.--An order under subsection (a) directing compliance must contain a finding that compliance is not in violation of 18 U.S.C. § 2702 (relating to voluntary disclosure of customer communications or records).
(c) Notification.--A custodian may notify the user that a request for disclosure or to terminate an account was made under this chapter.
(d) Lawful access following termination request.--A custodian may deny a request under this chapter from a fiduciary or designated recipient for disclosure of digital assets or to terminate an account if the custodian is aware of any lawful access to the account following the receipt of the fiduciary's request.
(e) Additional court orders.--This chapter does not limit a custodian's ability to obtain or require a fiduciary or designated recipient requesting disclosure or termination under this chapter to obtain a court order which:
(1) specifies that an account belongs to the protected person or principal;
(2) specifies that there is sufficient consent from the protected person or principal to support the requested disclosure; and
(3) contains a finding required by law other than this chapter.
(f) Immunity.--A custodian and its officers, employees and agents are immune from liability for an act or omission done in good faith in compliance with this chapter.
§ 3917. Uniformity of application and construction.
In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
§ 3918. Relation to Electronic Signatures in Global and National Commerce Act.
To the extent permitted by section 102 of the Electronic Signatures in Global and National Commerce Act (Public Law 106-229, 15 U.S.C. § 7002), this chapter may supersede provisions of that act.
Section 3. Section 5601.4(a) of Title 20 is amended by adding a paragraph to read:
§ 5601.4. Authority that requires specific and general grant of authority.
(a) General rule.--An agent under a power of attorney may do the following on behalf of the principal or with the principal's property only if the power of attorney expressly grants the agent the authority and exercise of the authority is not otherwise prohibited by another agreement or instrument to which the authority or property is subject:
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(9) Access the electronic communications and digital assets of the principal. As used in this paragraph, the following words and phrases shall have the meanings given to them in this paragraph unless the context clearly indicates otherwise:
"Digital asset." As defined in section 3902 (relating to definitions).
"Electronic communication." As defined in section 3902.
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Section 4. The addition of 20 Pa.C.S. § 5601.4(a)(9) shall apply to a power of attorney executed on or after the effective date of this section.
Section 5. This act shall take effect in 180 days.
APPROVED--The 23rd day of July, A.D. 2020.
TOM WOLF
