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SENATE DOCKET, NO. 230 FILED ON: 1/9/2025
SENATE . . . . . . . . . . . . . . No. 1048
The Commonwealth of Massachusetts
_________________
PRESENTED BY:
Cynthia Stone Creem
_________________
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 relative to access to a decedent's electronic mail accounts.
_______________
PETITION OF:
NAME:DISTRICT/ADDRESS :Cynthia Stone CreemNorfolk and Middlesex 1 of 19
SENATE DOCKET, NO. 230 FILED ON: 1/9/2025
SENATE . . . . . . . . . . . . . . No. 1048
By Ms. Creem, a petition (accompanied by bill, Senate, No. 1048) of Cynthia Stone Creem for
legislation relative to access to a decedent's electronic mail accounts. The Judiciary.
[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 930 OF 2023-2024.]
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Fourth General Court
(2025-2026)
_______________
An Act relative to access to a decedent's electronic mail accounts.
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 19
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. 3 of 19
29 (7) “Court” means the probate and family court department of the trial court and any
30other Massachusetts court having appellate jurisdiction over any ruling by the probate and family
31court.
32 (8) “Custodian” means a person that carries, maintains, processes, receives, or stores a
33digital asset of a user.
34 (9) “Designated recipient” means a person chosen by a user using an online tool to
35administer digital assets of the user.
36 (10) “Digital asset” means an electronic record in which an individual has a right or
37interest. The term does not include an underlying asset or liability unless the asset or liability is
38itself an electronic record.
39 (11) “Electronic” means relating to technology having electrical, digital, magnetic,
40wireless, optical, electromagnetic, or similar capabilities.
41 (12) “Electronic communication” has the meaning set forth in 18 U.S.C. Section
422510(12), as amended.
43 (13) “Electronic communication service” means a custodian that provides to a user the
44ability to send or receive an electronic communication.
45 (14) “Fiduciary” means an original, additional, or successor personal representative,
46conservator, agent or trustee.
47 (15) “Information” means data, text, images, videos, sounds, codes, computer programs,
48software, databases, or the like. 4 of 19
49 (16) “Online tool” means an electronic service provided by a custodian that allows the
50user, in an agreement distinct from the terms-of-service agreement between the custodian and
51user, to provide directions for disclosure or nondisclosure of digital assets to a third person.
52 (17) “Person” means an individual, estate, business or nonprofit entity, public
53corporation, government or governmental subdivision, agency, or instrumentality, or other legal
54entity.
55 (18) “Personal representative” means an executor, administrator, special administrator, or
56person that performs substantially the same function under law of this commonwealth other than
57this chapter.
58 (19) “Power of attorney” means a record that grants an agent authority to act in the place
59of a principal.
60 (20) “Principal” means an individual who grants authority to an agent in a power of
61attorney.
62 (21) “Protected person” means an individual for whom a conservator has been appointed.
63The term includes an individual for whom a petition for the appointment of a conservator is
64pending.
65 (22) “Record” means information that is inscribed on a tangible medium or that is stored
66in an electronic or other medium and is retrievable in perceivable form.
67 (23) “Remote computing service” means a custodian that provides to a user computer-
68processing services or the storage of digital assets by means of an electronic communications
69system, as defined in 18 U.S.C. Section 2510(14), as amended. 5 of 19
70 (24) “Terms of service agreement” means an agreement that controls the relationship
71between a user and a custodian.
72 (25) “Trustee” means a fiduciary with legal title to property under an agreement or
73declaration that creates a beneficial interest in another. The term includes an original, additional,
74or successor trustee, whether or not appointed or confirmed by the court.
75 (26) “User” means a person that has an account with a custodian.
76 (27) “Will” includes a codicil, testamentary instrument that only appoints a personal
77representative, and an instrument that revokes or revises a testamentary instrument.
78 Section 3. Applicability
79 (a) This chapter applies to:
80 (1) a fiduciary acting under a will or power of attorney executed before, on, or after the
81effective date of this chapter;
82 (2) a personal representative acting for a decedent who died before, on, or after the
83effective date of this chapter;
84 (3) a conservatorship proceeding commenced before, on, or after the effective date of this
85chapter; and
86 (4) a trustee acting under a trust created before, on, or after the effective date of this
87chapter.
88 (b) This chapter applies to a custodian if the user resides in this commonwealth or resided
89in this commonwealth at the time of the user’s death. 6 of 19
90 (c) This chapter does not apply to a digital asset of an employer used by an employee in
91the ordinary course of the employer’s business.
92 Section 4. Direction for disclosure of digital assets.
93 (a) A user may use an online tool to direct the custodian to disclose or not to disclose
94some or all of the user’s digital assets, including the content of electronic communications. If the
95online tool allows the user to modify or delete a direction at all times, a direction regarding
96disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of
97attorney or other record made prior to the date of the direction made by the user using an online
98tool.
99 (b) The user may allow or prohibit in a will, trust, power of attorney, or other record,
100disclosure to a fiduciary of some or all of the user’s digital assets, including the content of
101electronic communications sent or received by the user, and the provisions of such will or other
102record shall override a contrary direction by the user using an online tool that was made prior to
103the date of such will or other record.
104 (c) A user’s direction under subsection (a) or (b) overrides (i) a contrary provision in a
105terms-of-service agreement that does not require the user to act affirmatively and distinctly from
106the user’s assent to the terms of service and (ii) a contrary prior direction from the user under
107subsection (a) or (b).
108 (d) If the online tool has not been utilized by the user or if the custodian has not provided
109an online tool and, in either case, if no direction regarding some or all of the digital assets is
110provided to the fiduciary in a will or other record, the fiduciary may petition a court for access to 7 of 19
111some or all of the user’s digital assets. The court shall grant such access unless it finds that the
112fiduciary is not acting in good faith or that such access is prohibited by applicable federal law.
113 Section 5. Terms-of-service agreement
114 (a) Except as otherwise provided in Section 4, this chapter does not change or impair a
115right of a custodian or a user under a terms-of-service agreement to access and use digital assets
116of the user.
117 (b) Except as otherwise provided in Section 4, this chapter does not give a fiduciary any
118new or expanded rights other than those held by the user for whom, or for whose estate, the
119fiduciary acts or represents.
120 (c) A fiduciary’s access to digital assets may be modified or eliminated by a user, by
121federal law, or, subject to Section 4, by a terms-of-service agreement if the user has not provided
122a direction under Section 4(a) or Section 4(b) or the fiduciary has not obtained a court order
123issued under Section 4(d).
124 Section 6. Procedure for disclosing digital assets
125 (a) When disclosing digital assets of a user under this chapter, the custodian shall, in
126accordance with the direction provided under Section 4(a) or Section 4(b) or a court order issued
127under Section 4(d):
128 (1) if requested by the fiduciary or designated recipient, grant a fiduciary or designated
129recipient full access to the user’s account; 8 of 19
130 (2) subject to Section 6(d), grant a fiduciary or designated recipient partial access to the
131user’s account to the extent that such partial access is requested by a fiduciary or designated
132recipient; or
133 (3) at the option of the custodian, provide a fiduciary or designated recipient a copy in a
134record of any digital asset that, on the date the custodian received the request for disclosure, the
135user could have accessed if the user were alive and had full capacity and access to the account.
136 (b) A custodian may assess a reasonable administrative charge for the cost of disclosing
137digital assets under this chapter.
138 (c) A custodian need not disclose under this chapter a digital asset deleted by a user.
139 (d) If a user directs or a fiduciary requests a custodian to disclose under this chapter
140some, but not all, of the user’s digital assets, the custodian need not disclose the assets if
141segregation of the assets would impose an undue burden on the custodian. If the custodian
142believes the direction or request imposes an undue burden, the custodian or fiduciary may seek
143an order from the court to disclose:
144 (1) a subset limited by date of the user’s digital assets;
145 (2) all of the user’s digital assets to the fiduciary or designated recipient;
146 (3) none of the user’s digital assets; or
147 (4) all of the user’s digital assets to the court for review in camera.
148 Section 7. Disclosure of content of electronic communications of deceased user 9 of 19
149 If a deceased user consented or a court directs disclosure of the contents of electronic
150communications of the user, the custodian shall disclose to the personal representative of the
151estate of the user the content of an electronic communication sent or received by the user if the
152personal representative gives the custodian:
153 (1) a written request for disclosure in physical or electronic form;
154 (2) a certified copy of the death certificate of the user;
155 (3) an attested copy of the letter of appointment of the personal representative or a small
156estate affidavit or court order;
157 (4) unless the deceased user provided direction using an online tool, (i) a copy of the
158user’s will, trust or other record evidencing the user’s consent to disclosure of the content of
159electronic communications, (ii) a court order acknowledging that the user consented to the
160disclosure of the content of electronic communications to the personal representative under the
161user’s will, trust or other record or (iii) a court order issued under Section 4(d); and
162 (5) if requested by the custodian:
163 (A) a number, username, address, or other unique subscriber or account identifier
164assigned by the custodian to identify the user’s account;
165 (B) evidence linking the account to the user; or
166 (C) a finding by the court that the deceased user had a specific account with the
167custodian, identifiable by the information specified in subparagraph (A).
168 Section 8. Disclosure of other digital assets of deceased user 10 of 19
169 Unless the deceased user prohibited disclosure of digital assets or the court directs
170otherwise, a custodian shall disclose to the personal representative of the estate of a deceased
171user a catalogue of electronic communications sent or received by the user and digital assets,
172other than the content of electronic communications, of the user, if the representative gives the
173custodian:
174 (1) a written request for disclosure in physical or electronic form;
175 (2) a certified copy of the death certificate of the user;
176 (3) an attested copy of the letter of appointment of the representative or a small estate
177affidavit or court order; and
178 (4) if requested by the custodian:
179 (A) a number, username, address, or other unique subscriber or account identifier
180assigned by the custodian to identify the user’s account;
181 (B) evidence linking the account to the user;
182 (C) an affidavit stating that disclosure of the user’s digital assets is reasonably necessary
183for administration of the estate; or
184 (D) a finding by the court that:
185 (i) the user had a specific account with the custodian, identifiable by the
186information specified in subparagraph (A); or
187 (ii) disclosure of the user’s digital assets is reasonably necessary for
188administration of the estate. 11 of 19
189 Section 9. Disclosure of content of electronic communications of principal
190 To the extent a power of attorney expressly grants an agent authority over the content of
191electronic communications sent or received by the principal and unless directed otherwise by the
192principal or the court, a custodian shall disclose to the agent the content if the agent gives the
193custodian:
194 (1) a written request for disclosure in physical or electronic form;
195 (2) an original or copy of the power of attorney expressly granting the agent authority
196over the content of electronic communications of the principal;
197 (3) a certification by the agent, under penalty of perjury, that the power of attorney is in
198effect; and
199 (4) if requested by the custodian:
200 (A) a number, username, address, or other unique subscriber or account identifier
201assigned by the custodian to identify the principal’s account; or
202 (B) evidence linking the account to the principal.
203 Section 10. Disclosure of other digital assets of principal
204 Unless otherwise ordered by the court, directed by the principal, or provided by a power
205of attorney, a custodian shall disclose to an agent with specific authority over digital assets or
206general authority to act on behalf of a principal a catalogue of electronic communications sent or
207received by the principal and digital assets, other than the content of electronic communications,
208of the principal if the agent gives the custodian: 12 of 19
209 (1) a written request for the disclosure in physical or electronic form;
210 (2) an original or a copy of the power of attorney that gives the agent specific authority
211over digital assets or general authority to act on behalf of the principal;
212 (3) a certification by the agent, under penalty of perjury, that the power of attorney is in
213effect and;
214 (4) if requested by the custodian:
215 (A) a number, username, address, or other unique subscriber or account identifier
216assigned by the custodian to identify the principal’s account; or
217 (B) evidence linking the account to the principal.
218 Section 11. Disclosure of digital assets held in trust when trustee is original user
219 Unless otherwise ordered by the court or provided in a trust, a custodian shall disclose to
220a trustee that is an original user of an account any digital asset of the account held in trust,
221including a catalogue of electronic communications of the trustee and the content of electronic
222communications.
223 Section 12. Disclosure of contents of electronic communications held in trust when
224trustee is not original user
225 Unless otherwise ordered by the court, directed by the user, or provided in a trust, a
226custodian shall disclose to a trustee that is not an original user of an account the content of an
227electronic communication sent or received by an original or successor user and carried, 13 of 19
228maintained, processed, received, or stored by the custodian in the account of the trust if the
229trustee gives the custodian:
230 (1) a written request for disclosure in physical or electronic form;
231 (2) a certified copy of the trust instrument or a certification of the trust under chapter
232203E that includes consent to disclosure of the content of electronic communications to the
233trustee;
234 (3) a certification by the trustee, under penalty of perjury, that the trust exists and the
235trustee is a currently acting trustee of the trust; and
236 (4) if requested by the custodian:
237 (A) a number, username, address, or other unique subscriber or account identifier
238assigned by the custodian to identify the trust’s account; or
239 (B) evidence linking the account to the trust.
240 Section 13. Disclosure of other digital assets held in trust when trustee is not original
241user
242 Unless otherwise ordered by the court, directed by the user, or provided in a trust, a
243custodian shall disclose, to a trustee that is not an original user of an account, a catalogue of
244electronic communications sent or received by an original or successor user and stored, carried,
245or maintained by the custodian in an account of the trust and any digital assets, other than the
246content of electronic communications, in which the trust has a right or interest if the trustee gives
247the custodian: 14 of 19
248 (1) a written request for disclosure in physical or electronic form;
249 (2) a certified copy of the trust instrument or a certification of the trust under chapter
250203E;
251 (3) a certification by the trustee, under penalty of perjury, that the trust exists and the
252trustee is a currently acting trustee of the trust; and
253 (4) if requested by the custodian:
254 (A) a number, username, address, or other unique subscriber or account identifier
255assigned by the custodian to identify the trust’s account; or
256 (B) evidence linking the account to the trust.
257 Section 14. Disclosure of digital assets to conservator of protected person
258 (a) After an opportunity for a hearing under chapter 190B, the court may grant a
259conservator access to the digital assets of a protected person.
260 (b) Unless otherwise ordered by the court or directed by the user, a custodian shall
261disclose to a conservator the catalogue of electronic communications sent or received by a
262protected person and any digital assets, other than the content of electronic communications, in
263which the protected person has a right or interest if the conservator gives the custodian:
264 (1) a written request for disclosure in physical or electronic form;
265 (2) an attested copy of the court order that gives the conservator authority over the
266digital assets of the protected person; and 15 of 19
267 (3) if requested by the custodian:
268 (A) a number, username, address, or other unique subscriber or account
269identifier assigned by the custodian to identify the account of the protected person; or
270 (B) evidence linking the account to the protected person.
271 (c) A conservator with general authority to manage the assets of a protected person may
272request a custodian of the digital assets of the protected person to suspend or terminate an
273account of the protected person for good cause. A request made under this section must be
274accompanied by an attested copy of the court order giving the conservator authority over the
275protected person’s property.
276 Section 15. Fiduciary duty and authority
277 (a) The user’s rights in digital assets, including the content of electronic communications,
278constitute property of the estate of the user to be managed consistent with the legal duties
279imposed on a fiduciary charged with managing tangible property, including:
280 (1) the duty of care;
281 (2) the duty of loyalty; and
282 (3) the duty of confidentiality.
283 (b) A fiduciary’s authority with respect to a digital asset of a user:
284 (1) except as otherwise provided in Section 4, is subject to the applicable terms of
285service; 16 of 19
286 (2) is subject to other applicable law, including copyright law;
287 (3) is limited by the scope of the fiduciary’s duties; and
288 (4) may not be used to impersonate the user.
289 (c) A fiduciary with authority over the property of a decedent, protected person, principal
290or settlor has the right to access any digital asset in which the decedent, protected person,
291principal, or settlor had a right or interest and that is not held by a custodian or subject to a
292terms-of-service agreement.
293 (d) A fiduciary acting within the scope of the fiduciary’s duties is an authorized user of
294the property of the decedent, protected person, principal, or settlor for the purpose of applicable
295computer fraud and unauthorized computer access laws, including section 120F of chapter 266 of
296the General Laws.
297 (e) A fiduciary with authority over the tangible, personal property of a decedent,
298protected person, principal, or settlor:
299 (1) has the right to access the property and any digital asset stored in it; and
300 (2) is an authorized user for the purpose of computer fraud and unauthorized
301computer access laws, including section 120F of chapter 266 of the General Laws.
302 (f) A custodian may disclose information in an account to a fiduciary of the user when the
303information is required to terminate an account used to access digital assets licensed to the user. 17 of 19
304 (g) A fiduciary of a user may request a custodian to terminate the user’s account. A
305request for termination must be in writing, in either physical or electronic form, and
306accompanied by:
307 (1) if the user is deceased, a certified copy of the death certificate of the user;
308 (2) an attested copy of the letter of appointment of the representative or a small
309estate affidavit or court order, power of attorney, or trust giving the fiduciary authority over the
310account; and
311 (3) if requested by the custodian:
312 (A) a number, username, address, or other unique subscriber or account identifier
313assigned by the custodian to identify the user’s account;
314 (B) evidence linking the account to the user; or
315 (C) a finding by the court that the user had a specific account with the custodian,
316identifiable by the information specified in subparagraph (A).
317 Section 16. Custodian compliance and immunity
318 (a) Not later than 60 days after receipt of the information required under sections 7
319through 14, a custodian shall comply with a request under this chapter from a fiduciary or
320designated recipient to disclose digital assets or terminate an account. If the custodian fails to
321comply, the fiduciary or designated recipient may apply to the court for an order directing
322compliance. 18 of 19
323 (b) A custodian may notify the user that a request for disclosure or to terminate an
324account was made under this chapter.
325 (c) A custodian may deny a request under this chapter from a fiduciary or designated
326recipient for disclosure of digital assets or to terminate an account if the custodian is aware of
327any lawful access to the account following the receipt of the fiduciary’s request.
328 (d) This chapter does not limit a custodian’s ability to obtain or require a fiduciary or
329designated recipient requesting disclosure or termination under this chapter to obtain a court
330order which:
331 (1) specifies that an account belongs to the protected person or principal;
332 (2) specifies that there is sufficient consent from the protected person or principal to
333support the requested disclosure; and
334 (3) contains a finding required by law other than this chapter.
335 (e) A custodian and its officers, employees, and agents are immune from liability for an
336act or omission done in good faith in compliance with this chapter.
337 Section 17. Uniformity of application and construction
338 In applying and construing this uniform act, consideration must be given to the need to
339promote uniformity of the law with respect to its subject matter among states that enact it.
340 Section 18. Relation to Electronic Signatures in Global and National Commerce Act
341 This chapter modifies, limits and supersedes the federal Electronic Signatures in Global
342and National Commerce Act, 15 U.S.C. section 7001, et seq., but does not modify, limit, or 19 of 19
343supersede section 101(c) of said act, 15 U.S.C. section 7001(c), or authorize electronic delivery
344of any of the notices described in section 103(b) of said act, 15 U.S.C. section 7003(b).
345 Section 19. Severability
346 If any provision of this chapter or its application to any person or circumstance is held
347invalid, the invalidity does not affect other provisions or applications of this chapter which can
348be given effect without the invalid provision or application, and to this end the provisions of this
349chapter are severable.
350 SECTION 2. This act shall take effect 1 year after its passage.