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STATE OF OKLAHOMA
2nd Session of the 59th Leg islature (2024)
HOUSE BILL 3778 By: Duel
AS INTRODUCED
An Act relating to digital assets; creating the
Revised Uniform Fiduciary Access to Digital Assets
Act; defining terms; clarifying applicability of act;
permitting user to use online tool to direct
custodian to disclose or not disclose certain digital
assets; providing procedure if online tool not used;
establishing that user 's direction overrides certain
contrary terms-of-service agreement; clarifying that
act does not impair certain right ; clarifying that
act does not expand nor give certain rights;
permitting modification or elimination of certain
access; permitting custod ian grant certain access;
permitting custodian to provide certain copy of
digital asset; permitting reasonabl e administrative
charge; specifying that custodian need not disclose
certain digital asset; permitting custodian to not
disclose certain digital assets that impose undue
burden; permitting seeking of certain court order;
directing that custodian make c ertain disclosures to
personal representative of the estate of the user;
directing custodian make certain discl osures of
catalogue of electronic communications to personal
representative; directing custodian make certain
disclosures of electronic communications to agent;
directing custodian make certain disclosure of
catalogue of electronic communica tions to certain
agents with certain authority; directing that
custodian make certain disclosures to trustee;
permitting court to grant access to conservator of
certain digital assets; direct ing custodian to make
certain disclosures of electronic communications to
conservator; permitting conservator with general
authority to suspend or termina te certain accounts
for good cause; establishing legal duties of
fiduciary charged with management of digital assets;
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clarifying authority of fi duciary or designated
recipient's authority; permitting fiduciary with
certain authority certain right of access to certain
digital assets; clarifying that fiduciary acting
within certain scope is an authorized user;
permitting custodian to disclose certain information
to fiduciary when necessary to terminate certain
account; permitting fiduciary to request termination
of user's account; directing that custodian comply
with request within time frame ; permitting fiduciary
or designated recipient to seek court order;
directing that order must not violat e certain federal
law; permitting custodian to notify user of certain
requests; permitting custodian to deny certain
requests; clarifying that act does not limit certain
abilities of custodian; limiting liability; directing
for certain consideration in application of act;
clarifying that act modifies , limits, or supersedes
certain law; providing for sev erability; providing
for codification; and providing an effective date .
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Secti on 3101 of Title 58, unless there
is created a duplication in numbering, reads as follows:
This act shall be known and may be cited as the "Revised Uniform
Fiduciary Access to Digital Assets Act".
SECTION 2. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3102 of Title 58, unless there
is created a duplication in numbering, reads as follows:
As used in this act:
1. "Account" means an arrangement under a terms -of-service
agreement in which a custodian carries, maintains, processes,
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receives, or stores a digital asset of the user or provides goods or
services to the user ;
2. "Agent" means an attorney-in-fact granted authority under a
durable or nondurable power of attorney ;
3. "Carries" means engages in the transmission of an electronic
communication;
4. "Catalogue of electronic communications " means information
that identifies each person with which a user has had an elect ronic
communication, the time and date of the communication, and the
electronic address of the person;
5. "Conservator" means a person appointed by a court to manage
the estate of a living individual. The term includes a limited
conservator;
6. "Content of an electronic communication " means information
concerning the substance or m eaning of the communication which:
a. has been sent or received by a user ,
b. 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
c. is not readily accessible to the public;
7. "Court" means the court of proper jurisdic tion;
8. "Custodian" means a person who carries, maintains,
processes, receives, or stores a digital asset of a user ;
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9. "Designated recipient " means a person chosen by a user using
an online tool to administer digital assets of the user ;
10. "Digital asset" means an electronic record in which an
individual has a right or interest. The term does not include an
underlying asset or liability unle ss the asset or liability is
itself an electronic record ;
11. "Electronic" means relating to technology having
electrical, digital, magnetic, wireless, optical, electromagnetic,
or similar capabilities ;
12. "Electronic communication " has the meaning set forth in 18
U.S.C., Section 2510(12);
13. "Electronic-communication service " means a custodian that
provides a user the ability to send or receive an electronic
communication;
14. "Fiduciary" means an original, additional, or successor
personal representative, conservator, agent, or trustee;
15. "Information" means data, text, images, videos, sounds,
codes, computer programs, software, databases, or the like ;
16. "Online tool" means an electronic service provided by a
custodian that 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;
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17. "Person" means an individual, estate, business or nonprofit
entity, public corporation, government or governmental subdivision,
agency, or instrumentality, or other legal entity ;
18. "Personal representative " means an executor, administrator,
special administrato r, or person that performs substantially the
same function under the laws of this state other than t his act;
19. "Power of attorney" means a record that grants an agent
authority to act in the place of a principal ;
20. "Principal" means an individual who grants aut hority to an
agent in a power of attorney ;
21. "Protected person" means an individual for w hom a
conservator has been appointed. The term includes an individual for
whom an application for the appointment of a conservator is pending;
22. "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 ;
23. "Remote-computing service" means a custodian that provides
to a user computer processing services or the storage of d igital
assets by means of an electronic com munications system, as defined
in 18 U.S.C., Section 2510(14);
24. "Terms-of-service agreement" means an agreement that
controls the relationship between a user and a custodian ;
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25. "Trustee" means a fiduciary with legal title to property
under an agreement or declaration that creates a beneficial in terest
in another. The term includes a successor trustee ;
26. "User" means a person who has an account with a custodian ;
and
27. "Will" includes a codicil, testamentary i nstrument that
only appoints an exec utor, and instrument that revokes or revises a
testamentary instrument .
SECTION 3. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3103 of Title 58, unless there
is created a duplication in numbering, reads as follows:
A. This act applies to:
1. A fiduciary acting under a will or power of attorney
executed before, on, or after November 1, 2024;
2. A personal representative acting for a decedent who died
before, on, or after November 1, 2024;
3. A conservatorship proceeding commenced before, on , or after
November 1, 2024; and
4. A trustee acting under a trust created before , on, or after
November 1, 2024.
B. This act applies to a custodian if the user reside s in this
state or resided in this state at the time of the user's death.
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C. This act does not app ly to a digital asset of an employer
used by an employee in the ordi nary course of the employer 's
business.
SECTION 4. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3104 of Title 58, unless there
is created a duplication in numbering, reads as follows:
A. A user may use an online tool to direct the custodian to
disclose to a designated recipient or not to disclose some or all of
the user's digital assets, including the content of electronic
communications. 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. If a user has not used an online tool to give direction
under subsection A of this section or if the custodian has not
provided an online tool, the user may allow or prohibit in a will,
trust, power of attorne y, or other record, disclosure to a fiduciary
of some or all of the user 's digital assets, including the content
of electronic communi cations sent or received by the user.
C. A user's direction under subsection A or B of this section
overrides a contrary provision in a terms-of-service agreement that
does not require the user to act affirmativel y and distinctly from
the user's assent to the terms of service.
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SECTION 5. NEW LAW A new section of law to be codified
in the Oklahoma Stat utes as Section 3105 of Title 58, unless there
is created a duplication in numbering, reads as follows:
A. This act does not change or impair a right of a custodian or
a user under a terms -of-service agreement to access and use dig ital
assets of the user.
B. This act does not give a fiduciary or design ated recipient
any new or expanded rights oth er than those held by the user for
whom, or for whose estate, the fiduciary or designated recipient
acts or represents.
C. A fiduciary's or designated recipient's access to digital
assets may be modified or eli minated by a user, by federal law, or
by a terms-of-service agreement if the user has not provided
direction under Section 4 of this act.
SECTION 6. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3106 of Title 58, unless there
is created a duplication in numbering, reads as follows:
A. When disclosing digital assets of a user under this act, the
custodian may, at its sole discretion :
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
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3. Provide a fiduciary or designated recipient a copy of a
record of any digital asset that, on the date the cus todian received
the request for disclosure, the user could have accessed if the user
were alive and had full c apacity and access to the account .
B. A custodian may assess a reasonable administrative charge
for the cost of disclosing digital assets under th is act.
C. A custodian need not disclose under this act a digital asset
deleted by a user.
D. If a user directs or a fiduciary requests a custodian to
disclose under this act some, but not all, of the us er's digital
assets, the custodian need not disclose the assets if segregation of
the assets would impose an undue burden on the custodian. If the
custodian believes the direction or request imposes an undu e burden,
the custodian or fiduciary may seek an order from the court to
disclose:
1. A subset limited by date of the user's digital assets;
2. All of the user's digital assets to the fiduciary or
designated recipient ;
3. None of the user's digital assets; or
4. All of the user's digital assets to th e court for review in
camera.
SECTION 7. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3107 of Title 58, unless there
is created a duplication in num bering, reads as follows:
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If a deceased user cons ented or a court directs disclosure of
the contents of electronic communications of the user, the custodian
shall disclose to the personal representative of the estate of the
user the content of an electroni c communication sent or received by
the user if the 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 letter of appointment of the
representative or a small -estate affidavit or court order ;
4. Unless the user provided direct ion 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:
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:
(1) the user had a specific a ccount with the
custodian, identifiable b y the information
specified in subparagraph a of paragraph 5 of
this section,
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(2) disclosure of the content of electronic
communications of the u ser would not violate 18
U.S.C., Section 2701 et seq., 47 U.S.C., Section
222, or other applicable law ,
(3) unless the user provided directi on using an
online tool, the user consented to disclosure of
the content of electronic communications , or
(4) disclosure of the content of electronic
communications of the user is reasonably
necessary for administration of the estate .
SECTION 8. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3108 of Title 58, unless there
is created a duplication in numbering, reads as follows:
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 catalogue of
electronic communications sent or received by the user and digital
assets, other than the content of electronic communications, of the
user, if the representative gives the custodian :
1. A written request for disclosure in physical or electronic
form;
2. A certified copy of the death cert ificate of the user;
3. A certified copy of the letter of appointment of the
representative or a small -estate affidavit or court order ; and
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4. 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 ,
c. an affidavit stating that disclosure of the user 's
digital assets is reasonably necessary for
administration of the estate, or
d. a finding by the court that:
(1) the user had a specific acc ount with the
custodian, identifiable by the information
specified in subparagraph a of paragraph 4 of
this section, or
(2) disclosure of the user 's digital assets is
reasonably necessary for administration of the
estate.
SECTION 9. NEW LAW A new section of law t o be codified
in the Oklahoma Statutes as Section 3109 of Title 58, unless there
is created a duplication in numbering, reads as follows:
To the extent a power of attorney expressly grants an agent
authority over the content of electronic communications se nt or
received by the principal and unless directed otherwi se by the
principal or the court, a custodian shall disclose to the agent the
content if the agent gives the custodian:
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1. A written request for disclosure in physical or electronic
form;
2. An original or 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 :
a. a number, username, address, or other unique
subscriber or account identifier assigned by the
custodian to identify the principal's account, or
b. evidence linking the account to the principal.
SECTION 10. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3110 of Title 58, unless there
is created a duplication in n umbering, reads as follows:
Unless otherwise ordered by the court, directed by the
principal, or provided by a p ower of attorney, a custodian shall
disclose to an agent with s pecific authority over digital assets or
general authority to act on behalf of a principal, a catalogue of
electronic communications sent or received by the principal and
digital assets, other t han 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;
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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, t hat
the power of attorney is in effect; and
4. If requested by the custodian:
a. a number, username, address, or othe r unique
subscriber or account identifie r assigned by the
custodian to identify the principal 's account, or
b. evidence linking the account to the principal.
SECTION 11. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3111 of Title 58, unless there
is created a duplication in numbering, reads as follows:
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
catalogue of electronic communications of the trustee and the
content of electronic communic ations.
SECTION 12. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3112 of Title 58, unless there
is created a duplication in numbering, reads as follows:
Unless otherwise ordered by the court, direct ed by the user, or
provided in a trust, a custod ian shall disclose to a trustee that is
not an original user of an account the content of an electronic
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communication sent or receive d 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 that includes
consent to disclosure of the co ntent 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:
a. a number, username, address, or other unique
subscriber or account identifier assigned by the
custodian to identify the trust 's account, or
b. evidence linking the account to the trust.
SECTION 13. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3113 of Title 58, unless there
is created a duplication in numbering, reads as follows:
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 catalogue 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
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trust and any digital assets, other than the content of electron ic
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 instrumen t;
3. A certification by the trustee, under p enalty of perjury,
that the trust exists and the trustee is a currently acting trustee
of the trust; and
4. If requested by the custodian:
a. a number, username, address, or other unique
subscriber or account identifier assigned by the
custodian to identify the trust's account; or
b. evidence linking the account to the trust.
SECTION 14. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3114 of Title 58, unless there
is created a duplication in numbering , reads as follows:
A. After an opportunity for a hearing under Section 3-211 of
Title 30 of the Oklahoma Statute s, the court may grant a conservator
access to the digital assets of a protected person.
B. Unless otherwise ordered by the court or directed by the
user, a custodian shall disclose to a conservator the catalogue of
electronic communications sent or recei ved by a protected person and
any digital assets, other than the content of electronic
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communications, in which the protected person has a right or
interest if the conservator gives the custodian:
1. A written request for disclosure in physical or electro nic
form;
2. A certified copy of the court order that gives the
conservator authority over the digital assets of the protected
person; 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 account of the protected
person, or
b. evidence linking the account to the protected person.
C. A conservator 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 section
must be accompanied by a certified copy of the court order giving
the conservator authority over the protected per son's property.
SECTION 15. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3115 of Title 58, unless there
is created a duplication in numbering, reads as follows:
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A. The legal duties imposed on a fid uciary charged with
managing tangible property apply to the management of digita l
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 provi ded in Section 4 of this act, 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 autho rity over the property of a decedent,
protected person, principal, or settlor has the right to access any
digital asset in which the decedent, protected person, 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,
protected person, principal, or settlor for the purpose of
applicable computer fraud and unauthorized computer access laws.
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E. 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 it; and
2. Is an authorized user for the p urpose of computer fraud and
unauthorized computer access laws.
F. A custodian may disclose informat ion in an account to a
fiduciary of the user when the informatio n 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 termina tion must be in writing,
in either physical or electronic for m, and accompanied by:
1. If the user is deceased, a certified copy of the death
certificate of the user;
2. A certified copy of the letter of appointment of the
representative, 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 un ique
subscriber or account identi fier 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
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information specified in subparagraph a of paragraph 3
of subsection G of this section .
SECTION 16. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3116 of Title 58, unless there
is created a duplication in numbering, reads as follows:
A. Not later than sixty (60) days after receipt of the
information required under Sections 7 through 15 of this act, a
custodian shall comply with a request under this act from a
fiduciary or designated recipient to disclose digital assets or
terminate an account. If the custodian fails to comply, the
fiduciary or designated recipient may apply to the court for an
order directing compliance.
B. An order under subsection A of this section directing
compliance must contain a finding that compliance is not in
violation of 18 U.S.C., Section 2702.
C. A custodian may notify the user that a request for
disclosure or to terminate an account was made under this act.
D. A custodian may deny a request under this act from a
fiduciary or designated recipient for disclosur e of digital assets
or to terminate an acco unt if the custodian is aware of any lawful
access to the account following the receipt of the fiduciary 's
request.
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E. This act does not limit a custodian 's ability to obtain or
require a fiduciary or designated recipient requesting disclosure or
termination under this act to obtain a court order which:
1. Specifies that an account belongs to the protected person or
principal;
2. Specifies that there is su fficient consent from the
protected person or principal to support the requested disclosure;
and
3. Contains a finding required by law other than this act.
F. 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 act.
SECTION 17. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3117 of Title 58, unless there
is created a duplication in numbering, reads as follows:
In applying and construing this uniform act, considerati on must
be given to the need to promote uniformity of the law with respect
to its subject matter among states that enact it.
SECTION 18. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3118 of Title 58, unless there
is created a duplication in num bering, reads as follows:
This act modifies, limits, or supersedes the Electronic
Signatures in Global and National Commerce Act, 15 U.S.C. , Section
7001 et seq., but does not modify, limit, or supersede Section
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101(c) of that act, 15 U.S.C., Section 7001(c), or authorize
electronic delivery of any of the notices described in Section
103(b) of that act, 15 U.S.C. , Section 7003(b).
SECTION 19. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as S ection 3119 of Title 58, unless there
is created a duplication in numbering, reads as follows:
If any provision of this act or its application to any person or
circumstance is held invalid, the invalidity does not affect other
provisions or applications of this act which can be given effect
without the invalid provision or application, and to this end the
provisions of this act are severable.
SECTION 20. This act shall become effective November 1, 2024.
59-2-8710 MJ 01/10/24