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HOUSE DOCKET, NO. 1772 FILED ON: 1/18/2023
HOUSE . . . . . . . . . . . . . . . No. 1641
The Commonwealth of Massachusetts
_________________
PRESENTED BY:
Jay D. Livingstone
_________________
To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:
The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
An Act for uniform fiduciary access to digital assets.
_______________
PETITION OF:
NAME:DISTRICT/ADDRESS :DATE ADDED:Jay D. Livingstone8th Suffolk1/18/2023 1 of 18
HOUSE DOCKET, NO. 1772 FILED ON: 1/18/2023
HOUSE . . . . . . . . . . . . . . . No. 1641
By Representative Livingstone of Boston, a petition (accompanied by bill, House, No. 1641) of
Jay D. Livingstone relative to uniform fiduciary access to digital assets. The Judiciary.
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Third General Court
(2023-2024)
_______________
An Act for uniform fiduciary access to digital assets.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
of the same, as follows:
1 SECTION 1. The General Laws are hereby amended by inserting after chapter 201F the
2following chapter:-
3 CHAPTER 201G. MASSACHUSETTS REVISED UNIFORM FIDUCIARY ACCESS
4TO DIGITAL ASSETS ACT
5 Section 1. Short title
6 This chapter may be cited as the Massachusetts Revised Uniform Fiduciary Access to
7Digital Assets Act.
8 Section 2. Definitions
9 In this chapter: 2 of 18
10 (1) “Account” means an arrangement under a terms-of-service agreement in which a
11custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides
12goods or services to the user.
13 (2) “Agent” means an attorney-in-fact granted authority under a durable or nondurable
14power of attorney.
15 (3) “Carries” means engages in the transmission of an electronic communication.
16 (4) “Catalogue of electronic communications” means information that identifies each
17person with which a user has had an electronic communication, the time and date of the
18communication, and the electronic address of the person.
19 (5) “Conservator” means a person appointed by a court to manage the estate of a
20protected person and includes a limited conservator, temporary conservator, special conservator,
21and those individuals specifically authorized under section 5-408 of chapter 190B.
22 (6) “Content of an electronic communication” means information concerning the
23substance or meaning of the communication which:
24 (A) has been sent or received by a user;
25 (B) is in electronic storage by a custodian providing an electronic-communication service
26to the public or is carried or maintained by a custodian providing a remote-computing service to
27the public; and
28 (C) is not readily accessible to the public.
29 (7) “Court” means the probate and family court department of the trial court. 3 of 18
30 (8) “Custodian” means a person that carries, maintains, processes, receives, or stores a
31digital asset of a user.
32 (9) “Designated recipient” means a person chosen by a user using an online tool to
33administer digital assets of the user.
34 (10) “Digital asset” means an electronic record in which an individual has a right or
35interest. The term does not include an underlying asset or liability unless the asset or liability is
36itself an electronic record.
37 (11) “Electronic” means relating to technology having electrical, digital, magnetic,
38wireless, optical, electromagnetic, or similar capabilities.
39 (12) “Electronic communication” has the meaning set forth in 18 U.S.C. section
402510(12), as amended.
41 (13) “Electronic-communication service” means a custodian that provides to a user the
42ability to send or receive an electronic communication.
43 (14) “Fiduciary” means an original, additional, or successor personal representative,
44conservator, agent, or trustee.
45 (15) “Information” means data, text, images, videos, sounds, codes, computer programs,
46software, databases, or the like.
47 (16) “Online tool” means an electronic service provided by a custodian that allows the
48user, in an agreement distinct from the terms-of-service agreement between the custodian and
49user, to provide directions for disclosure or nondisclosure of digital assets to a third person. 4 of 18
50 (17) “Person” means an individual, estate, business or nonprofit entity, public
51corporation, government or governmental subdivision, agency, or instrumentality, or other legal
52entity.
53 (18) “Personal representative” means an executor, administrator, special administrator, or
54person that performs substantially the same function under law of this commonwealth other than
55this chapter.
56 (19) “Power of attorney” means a record that grants an agent authority to act in the place
57of a principal.
58 (20) “Principal” means an individual who grants authority to an agent in a power of
59attorney.
60 (21) “Protected person” means an individual for whom a conservator has been appointed.
61The term includes an individual for whom a petition for the appointment of a conservator is
62pending.
63 (22) “Record” means information that is inscribed on a tangible medium or that is stored
64in an electronic or other medium and is retrievable in perceivable form.
65 (23) “Remote-computing service” means a custodian that provides to a user computer-
66processing services or the storage of digital assets by means of an electronic communications
67system, as defined in 18 U.S.C. section 2510(14), as amended.
68 (24) “Terms-of-service agreement” means an agreement that controls the relationship
69between a user and a custodian. 5 of 18
70 (25) “Trustee” means a fiduciary with legal title to property under an agreement or
71declaration that creates a beneficial interest in another. The term includes an original, additional,
72or successor trustee, whether or not appointed or confirmed by the court.
73 (26) “User” means a person that has an account with a custodian.
74 (27) “Will” includes a codicil, testamentary instrument that only appoints a personal
75representative, and an instrument that revokes or revises a testamentary instrument.
76 Section 3. Applicability
77 (a) This chapter applies to:
78 (1) a fiduciary acting under a will or power of attorney executed before, on, or after the
79effective date of this chapter;
80 (2) a personal representative acting for a decedent who died before, on, or after the
81effective date of this chapter;
82 (3) a conservatorship proceeding commenced before, on, or after the effective date of this
83chapter; and
84 (4) a trustee acting under a trust created before, on, or after the effective date of this
85chapter.
86 (b) This chapter applies to a custodian if the user resides in this commonwealth or resided
87in this commonwealth at the time of the user’s death.
88 (c) This chapter does not apply to a digital asset of an employer used by an employee in
89the ordinary course of the employer’s business. 6 of 18
90 Section 4. User direction for disclosure of digital assets
91 (a) A user may use an online tool to direct the custodian to disclose or not to disclose
92some or all of the user’s digital assets, including the content of electronic communications. If the
93online tool allows the user to modify or delete a direction at all times, a direction regarding
94disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of
95attorney, or other record.
96 (b) If a user has not used an online tool to give direction under subsection (a) or if the
97custodian has not provided an online tool, the user may allow or prohibit in a will, trust, power of
98attorney, or other record, disclosure to a fiduciary of some or all of the user’s digital assets,
99including the content of electronic communications sent or received by the user.
100 (c) A user’s direction under subsection (a) or (b) overrides a contrary provision in a
101terms-of-service agreement that does not require the user to act affirmatively and distinctly from
102the user’s assent to the terms of service.
103 Section 5. Terms-of-service agreement
104 (a) This chapter does not change or impair a right of a custodian or a user under a terms-
105of-service agreement to access and use digital assets of the user.
106 (b) This chapter does not give a fiduciary any new or expanded rights other than those
107held by the user for whom, or for whose estate, the fiduciary acts or represents.
108 (c) A fiduciary’s access to digital assets may be modified or eliminated by a user, by
109federal law, or by a terms-of-service agreement if the user has not provided direction under
110section 4. 7 of 18
111 Section 6. Procedure for disclosing digital assets
112 (a) When disclosing digital assets of a user under this chapter, the custodian may at its
113sole discretion:
114 (1) grant a fiduciary or designated recipient full access to the user’s account;
115 (2) grant a fiduciary or designated recipient partial access to the user’s account sufficient
116to perform the tasks with which the fiduciary or designated recipient is charged; or
117 (3) provide a fiduciary or designated recipient a copy in a record of any digital asset that,
118on the date the custodian received the request for disclosure, the user could have accessed if the
119user were alive and had full capacity and access to the account.
120 (b) A custodian may assess a reasonable administrative charge for the cost of disclosing
121digital assets under this chapter.
122 (c) A custodian need not disclose under this chapter a digital asset deleted by a user.
123 (d) If a user directs or a fiduciary requests a custodian to disclose under this chapter
124some, but not all, of the user’s digital assets, the custodian need not disclose the assets if
125segregation of the assets would impose an undue burden on the custodian. If the custodian
126believes the direction or request imposes an undue burden, the custodian or fiduciary may seek
127an order from the court to disclose:
128 (1) a subset limited by date of the user’s digital assets;
129 (2) all of the user’s digital assets to the fiduciary or designated recipient;
130 (3) none of the user’s digital assets; or 8 of 18
131 (4) all of the user’s digital assets to the court for review in camera.
132 Section 7. Disclosure of content of electronic communications of deceased user
133 If a deceased user consented or a court directs disclosure of the contents of electronic
134communications of the user, the custodian shall disclose to the personal representative of the
135estate of the user the content of an electronic communication sent or received by the user if the
136representative gives the custodian:
137 (1) a written request for disclosure in physical or electronic form;
138 (2) a certified copy of the death certificate of the user;
139 (3) an attested copy of the letter of appointment of the representative or a small-estate
140affidavit or court order;
141 (4) unless the deceased user provided direction using an online tool, a copy of the user’s
142will, trust, or other record evidencing the user’s consent to disclosure of the content of electronic
143communications; and
144 (5) if requested by the custodian:
145 (A) a number, username, address, or other unique subscriber or account identifier
146assigned by the custodian to identify the user’s account;
147 (B) evidence linking the account to the user; or
148 (C) a finding by the court that: 9 of 18
149 (i) the user had a specific account with the custodian, identifiable by the information
150specified in subparagraph (A);
151 (ii) disclosure of the content of electronic communications of the user would not violate
15218 U.S.C. section 2701 et seq., as amended, 47 U.S.C. section 222, as amended, or other
153applicable law;
154 (iii) unless the user provided direction using an online tool, the user consented to
155disclosure of the content of electronic communications; or
156 (iv) disclosure of the content of electronic communications of the user is reasonably
157necessary for administration of the estate.
158 Section 8. Disclosure of other digital assets of deceased user
159 Unless the deceased user prohibited disclosure of digital assets or the court directs
160otherwise, a custodian shall disclose to the personal representative of the estate of a deceased
161user a catalogue of electronic communications sent or received by the user and digital assets,
162other than the content of electronic communications, of the user, if the representative gives the
163custodian:
164 (1) a written request for disclosure in physical or electronic form;
165 (2) a certified copy of the death certificate of the user;
166 (3) an attested copy of the letter of appointment of the representative or a small-estate
167affidavit or court order; and
168 (4) if requested by the custodian: 10 of 18
169 (A) a number, username, address, or other unique subscriber or account identifier
170assigned by the custodian to identify the user’s account;
171 (B) evidence linking the account to the user;
172 (C) an affidavit stating that disclosure of the user’s digital assets is reasonably necessary
173for administration of the estate; or
174 (D) a finding by the court that:
175 (i) the user had a specific account with the custodian, identifiable by the information
176specified in subparagraph (A); or
177 (ii) disclosure of the user’s digital assets is reasonably necessary for administration of the
178estate.
179 Section 9. Disclosure of content of electronic communications of principal
180 To the extent a power of attorney expressly grants an agent authority over the content of
181electronic communications sent or received by the principal and unless directed otherwise by the
182principal or the court, a custodian shall disclose to the agent the content if the agent gives the
183custodian:
184 (1) a written request for disclosure in physical or electronic form;
185 (2) an original or copy of the power of attorney expressly granting the agent authority
186over the content of electronic communications of the principal;
187 (3) a certification by the agent, under penalty of perjury, that the power of attorney is in
188effect; and 11 of 18
189 (4) if requested by the custodian:
190 (A) a number, username, address, or other unique subscriber or account identifier
191assigned by the custodian to identify the principal’s account; or
192 (B) evidence linking the account to the principal.
193 Section 10. Disclosure of other digital assets of principal
194 Unless otherwise ordered by the court, directed by the principal, or provided by a power
195of attorney, a custodian shall disclose to an agent with specific authority over digital assets or
196general authority to act on behalf of a principal a catalogue of electronic communications sent or
197received by the principal and digital assets, other than the content of electronic communications,
198of the principal if the agent gives the custodian:
199 (1) a written request for disclosure in physical or electronic form;
200 (2) an original or a copy of the power of attorney that gives the agent specific authority
201over digital assets or general authority to act on behalf of the principal;
202 (3) a certification by the agent, under penalty of perjury, that the power of attorney is in
203effect; and
204 (4) if requested by the custodian:
205 (A) a number, username, address, or other unique subscriber or account identifier
206assigned by the custodian to identify the principal’s account; or
207 (B) evidence linking the account to the principal. 12 of 18
208 Section 11. Disclosure of digital assets held in trust when trustee is original user
209 Unless otherwise ordered by the court or provided in a trust, a custodian shall disclose to
210a trustee that is an original user of an account any digital asset of the account held in trust,
211including a catalogue of electronic communications of the trustee and the content of electronic
212communications.
213 Section 12. Disclosure of contents of electronic communications held in trust when
214trustee is not original user
215 Unless otherwise ordered by the court, directed by the user, or provided in a trust, a
216custodian shall disclose to a trustee that is not an original user of an account the content of an
217electronic communication sent or received by an original or successor user and carried,
218maintained, processed, received, or stored by the custodian in the account of the trust if the
219trustee gives the custodian:
220 (1) a written request for disclosure in physical or electronic form;
221 (2) a certified copy of the trust instrument or a certification of the trust under chapter
222203E that includes consent to disclosure of the content of electronic communications to the
223trustee;
224 (3) a certification by the trustee, under penalty of perjury, that the trust exists and the
225trustee is a currently acting trustee of the trust; and
226 (4) if requested by the custodian:
227 (A) a number, username, address, or other unique subscriber or account identifier
228assigned by the custodian to identify the trust’s account; or 13 of 18
229 (B) evidence linking the account to the trust.
230 Section 13. Disclosure of other digital assets held in trust when trustee is not original user
231 Unless otherwise ordered by the court, directed by the user, or provided in a trust, a
232custodian shall disclose, to a trustee that is not an original user of an account, a catalogue of
233electronic communications sent or received by an original or successor user and stored, carried,
234or maintained by the custodian in an account of the trust and any digital assets, other than the
235content of electronic communications, in which the trust has a right or interest if the trustee gives
236the custodian:
237 (1) a written request for disclosure in physical or electronic form;
238 (2) a certified copy of the trust instrument or a certification of the trust under chapter
239203E;
240 (3) a certification by the trustee, under penalty of perjury, that the trust exists and the
241trustee is a currently acting trustee of the trust; and
242 (4) if requested by the custodian:
243 (A) a number, username, address, or other unique subscriber or account identifier
244assigned by the custodian to identify the trust’s account; or
245 (B) evidence linking the account to the trust.
246 Section 14. Disclosure of digital assets to conservator of protected person
247 (a) After an opportunity for a hearing under chapter 190B, the court may grant a
248conservator access to the digital assets of a protected person. 14 of 18
249 (b) Unless otherwise ordered by the court or directed by the user, a custodian shall
250disclose to a conservator the catalogue of electronic communications sent or received by a
251protected person and any digital assets, other than the content of electronic communications, in
252which the protected person has a right or interest if the conservator gives the custodian:
253 (1) a written request for disclosure in physical or electronic form;
254 (2) an attested copy of the court order that gives the conservator authority over the digital
255assets of the protected person; and
256 (3) if requested by the custodian:
257 (A) a number, username, address, or other unique subscriber or account identifier
258assigned by the custodian to identify the account of the protected person; or
259 (B) evidence linking the account to the protected person.
260 (c) A conservator with general authority to manage the assets of a protected person may
261request a custodian of the digital assets of the protected person to suspend or terminate an
262account of the protected person for good cause. A request made under this section must be
263accompanied by an attested copy of the court order giving the conservator authority over the
264protected person’s property.
265 Section 15. Fiduciary duty and authority
266 (a) The legal duties imposed on a fiduciary charged with managing tangible property
267apply to the management of digital assets, including:
268 (1) the duty of care; 15 of 18
269 (2) the duty of loyalty; and
270 (3) the duty of confidentiality.
271 (b) A fiduciary’s authority with respect to a digital asset of a user:
272 (1) except as otherwise provided in section 4, is subject to the applicable terms of service;
273 (2) is subject to other applicable law, including copyright law;
274 (3) is limited by the scope of the fiduciary’s duties; and
275 (4) may not be used to impersonate the user.
276 (c) A fiduciary with authority over the property of a decedent, protected person, principal,
277or settlor has the right to access any digital asset in which the decedent, protected person,
278principal, or settlor had a right or interest and that is not held by a custodian or subject to a
279terms-of-service agreement.
280 (d) A fiduciary acting within the scope of the fiduciary’s duties is an authorized user of
281the property of the decedent, protected person, principal, or settlor for the purpose of applicable
282computer-fraud and unauthorized-computer-access laws, including section 120F of chapter 266.
283 (e) A fiduciary with authority over the tangible, personal property of a decedent,
284protected person, principal, or settlor:
285 (1) has the right to access the property and any digital asset stored in it; and
286 (2) is an authorized user for the purpose of computer-fraud and unauthorized-computer-
287access laws, including section 120F of chapter 266. 16 of 18
288 (f) A custodian may disclose information in an account to a fiduciary of the user when the
289information is required to terminate an account used to access digital assets licensed to the user.
290 (g) A fiduciary of a user may request a custodian to terminate the user’s account. A
291request for termination must be in writing, in either physical or electronic form, and
292accompanied by:
293 (1) if the user is deceased, a certified copy of the death certificate of the user;
294 (2) an attested copy of the letter of appointment of the representative or a small-estate
295affidavit or court order, court order, power of attorney, or trust giving the fiduciary authority
296over the account; and
297 (3) if requested by the custodian:
298 (A) a number, username, address, or other unique subscriber or account identifier
299assigned by the custodian to identify the user’s account;
300 (B) evidence linking the account to the user; or
301 (C) a finding by the court that the user had a specific account with the custodian,
302identifiable by the information specified in subparagraph (A).
303 Section 16. Custodian compliance and immunity
304 (a) Not later than 60 days after receipt of the information required under sections 7
305through 14, a custodian shall comply with a request under this chapter from a fiduciary or
306designated recipient to disclose digital assets or terminate an account. If the custodian fails to 17 of 18
307comply, the fiduciary or designated recipient may apply to the court for an order directing
308compliance.
309 (b) An order under subsection (a) directing compliance must contain a finding that
310compliance is not in violation of 18 U.S.C. section 2702, as amended.
311 (c) A custodian may notify the user that a request for disclosure or to terminate an
312account was made under this chapter.
313 (d) A custodian may deny a request under this chapter from a fiduciary or designated
314recipient for disclosure of digital assets or to terminate an account if the custodian is aware of
315any lawful access to the account following the receipt of the fiduciary’s request.
316 (e) This chapter does not limit a custodian’s ability to obtain or require a fiduciary or
317designated recipient requesting disclosure or termination under this chapter to obtain a court
318order which:
319 (1) specifies that an account belongs to the protected person or principal;
320 (2) specifies that there is sufficient consent from the protected person or principal to
321support the requested disclosure; and
322 (3) contains a finding required by law other than this chapter.
323 (f) A custodian and its officers, employees, and agents are immune from liability for an
324act or omission done in good faith in compliance with this chapter.
325 Section 17. Uniformity of application and construction 18 of 18
326 In applying and construing this uniform act, consideration must be given to the need to
327promote uniformity of the law with respect to its subject matter among states that enact it.
328 Section 18. Relation to Electronic Signatures in Global and National Commerce Act
329 This chapter modifies, limits and supersedes the federal Electronic Signatures in Global
330and National Commerce Act, 15 U.S.C. section 7001, et seq., but does not modify, limit, or
331supersede section 101(c) of said act, 15 U.S.C. section 7001(c), or authorize electronic delivery
332of any of the notices described in section 103(b) of said act, 15 U.S.C. section 7003(b).
333 Section 19. Severability
334 If any provision of this chapter or its application to any person or circumstance is held
335invalid, the invalidity does not affect other provisions or applications of this chapter which can
336be given effect without the invalid provision or application, and to this end the provisions of this
337chapter are severable.
338 SECTION 2. This act shall take effect 1 year after its passage.