Digital asset is defined as “an electronic record in which an individual has a right or interest. The term ‘digital asset’ does not include an underlying asset or liability, unless the asset or liability is itself an electronic record.” California Probate Code Section 871(h). “Electronic” and “record” are also separately defined.
The State of California enacted a version of the Revised Uniform Fiduciary Access to Digital Assets Act which adds Part 20 (beginning with Section 870) to the Probate Code. It applies only where electronic information is being requested from a custodian by a decedent’s representative for the purpose of ascertaining the decedent’s assets and liabilities in managing an estate. This does not cover conservatorships, trusts and powers of attorney where the conservatee, trustor, or principal is still alive. It excludes coverage of an employer’s digital assets used by an employee in the ordinary course of the employer’s business. Thus for example a decedent’s estate may not request under the Act the e-mails of a company where the decedent had worked.
California Probate Code Section 870-884 can be generally summarized as addressing the following topics:
- Rights and duties of custodians
- Rights and duties of fiduciaries
- Disclosure of a “catalogue” and certain digital assets
- Disclosure to a trust
- Disclosure of contents of communications
An example of the scope of this law is the following:
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 to the custodian all of the following:
(a) A written request for disclosure in physical or electronic form.
(b) A certified copy of the death certificate of the user.
(c) A certified copy of the letter of appointment of the representative, a small-estate affidavit under Section 13101, or court order.
(d) 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.
(e) If requested by the custodian, any of the following:
(1) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account.
(2) Evidence linking the account to the user.
(3) An order of the court finding any of the following:
(A) That the user had a specific account with the custodian, identifiable by the information specified in paragraph (1).
(B) That disclosure of the content of the user’s electronic communications would not violate Chapter 121 (commencing with Section 2701) of Part 1 of Title 18 of, and Section 222 of Title 47 of, the United States Code, or other applicable law.
(C) Unless the user provided direction using an online tool, that the user consented to disclosure of the content of electronic communications.
(D) That disclosure of the content of electronic communications of a user is reasonably necessary for estate administration.
When dealing with digital assets, call an experienced probate attorney. Call Mitchell A. Port at 310.559.5259.