Illinois Enacts Digital Assets Act Provisions
Illinois House Bill 4648, regarding The Revised Uniform Fiduciary Access to Digital Assets Act, covers procedures and requirements for the access and control by guardians, executors, agents, and other fiduciaries of the digital assets belonging to persons who are deceased, legally disabled, or subject to a trust. Among other items, the bill covers applicability of the Act, user direction for disclosure of digital assets, terms-of-service agreements, custodian compliance and immunity, and the Act’s relation to federal laws governing electronic signatures.
Applicability
The Revised Uniform Fiduciary Access to Digital Assets Act applies to fiduciaries acting under a will or power of attorney, a personal representative acting for a decedent, a guardianship proceeding, a trustee acting under a trust, and a custodian if the user resides in Illinois or resided in Illinois at the time of death.
User Direction
A user can use an online tool to direct the custodian to disclose or not to disclose some or all of the user’s digital assets to a designated recipient. A user may allow or prohibit in a will, trust, power of attorney, or other record, disclosure to a fiduciary of some or all of the user’s digital assets. Direction regarding disclosure using the online tool supersedes opposing direction in a will, trust, power of attorney, or other record.
Terms-of-Service Agreements
The Revised Uniform Fiduciary Access to Digital Assets Act does not change or impair a right of a custodian or a user under a terms-of-service agreement to access and use digital assets of the user. A fiduciary does not receive any new or expanded rights other than those rights held by the user.
Custodian Compliance and Immunity
Under the Act, a custodian, at its sole discretion, can grant a fiduciary full or partial access to the user’s account and may charge a reasonable fee for the cost of disclosing. Assets that have previously been deleted by the user need not be disclosed by the custodian. If a deceased user gave consent or a court directs disclosure of the contents of electronic communications, the custodian shall disclose to the personal representative of the estate the content of the electronic communications if the representative provides the custodian with a written request for disclosure, a certified copy of the death certificate, a certified copy of the letter of appointment of the representative or a court order, a copy of the user’s record evidencing the user’s consent to disclosure, and other documents may be requested by the custodian. The custodian has 60 days to comply with requests for electronic communications. A custodian is immune from liability for an act or omission done in good faith in compliance with this Act except for willful and wanton misconduct.
Relation to Electronic Signatures
“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 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).”
The full text of Illinois House Bill 4648 can be found here.
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