Kansas Enacts Provisions Concerning Revised Uniform Fiduciary Access to Digital Asserts Act
Kansas enacted provisions concerning its Revised Uniform Fiduciary Access to Digital Assets Act. These provisions are effective on July 1, 2017.
Applicability
New Sec. 3.
(a) This act applies to:
(1) A fiduciary acting under a will or power of attorney executed before, on or after July 1, 2017;
(2) A personal representative acting for a decedent who died before, on or after July 1, 2017;
(3) A guardianship or conservatorship proceeding commenced before, on or after July 1, 2017;
(4) A trustee acting under a trust created before, on or after July 1, 2017.
(b) This act applies to a custodian if the user resides in this state or resided in this state at the time of the user’s death.
(c) This act does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer’s business.
Custodian Duties
New Sec. 6.
(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
(3) Provide a fiduciary or designated recipient a copy in a record of any digital asset that, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account.
(b) A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under this 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 user’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 undue 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 users digital assets; or
(4) All of the user’s digital assets to the court for review in camera.
Deceased User
New Sec. 7.
If a deceased user consented 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 electronic communication sent or received by the user if the representative gives the custodian:
(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 or a small estate affidavit 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; and
(e) If requested by the custodian:
(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; or
(3) A finding by the court that:
(A) The user had a specific account with the custodian, identifiable by the information specified in subsection (e)(1);
(B) Disclosure of the content of electronic communications of the user would not violate 18 U.S.C. § 2701 et seq., 47 U.S.C. § 222 or other applicable law;
(C) Unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications; or
(D) Disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.
New Sec. 8.
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:
(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 or a small estate affidavit or court order; and
(d) If requested by the custodian:
(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 affidavit stating that disclosure of the user’s digital assets is reasonably necessary for administration of the estate; or
(4) A finding by the court that:
(A) The user had a specific account with the custodian, identifiable by the information specified in subsection (d)(1); or
(B) Disclosure of the user’s digital assets is reasonably necessary for administration of the estate.
Legal Duties
New Sec. 15.
(a) The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital 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 provided in section 4, and amendments thereto, is subject to the applicable terms of service;
(2) Is subject to other applicable laws, including copyright laws;
(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 authority over the property of a decedent, ward or conservatee, principal or settlor has the right to access any digital asset in which the decedent, ward or conservatee, 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, ward or conservatee, principal or settlor for the purpose of applicable computer fraud and unauthorized computer access laws, including K.S.A. 2016 Supp. 21-5839, and amendments thereto.
(e) A fiduciary with authority over the tangible, personal property of a decedent, ward or conservatee, 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 purpose of computer fraud and unauthorized computer access laws, including K.S.A. 2016 Supp. 21-5839, and amendments thereto.
(f) A custodian may disclose information in an account to a fiduciary of the user when the information 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 termination must be in writing, in either physical or electronic form, 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 or a small estate affidavit or court order, 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 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 the user had a specific account with the custodian, identifiable by the information specified in subparagraph (A).
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