HOUSE DOCKET, NO. 289 FILED ON: 1/19/2021
HOUSE . . . . . . . . . . . . . . . No.
The Commonwealth of Massachusetts
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PRESENTED BY:
Jay D. Livingstone
_________________
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 for uniform fiduciary access to digital assets.
_______________
PETITION OF:
NAME: DISTRICT/ADDRESS: DATE ADDED:
Jay D. Livingstone 8th Suffolk 1/19/2021
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 HOUSE DOCKET, NO. 289 FILED ON: 1/19/2021
HOUSE . . . . . . . . . . . . . . . No.
[Pin Slip]
[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE, NO. 3368 OF 2019-2020.]
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Second General Court
(2021-2022)
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An Act for uniform fiduciary access to digital assets.
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
2 following chapter:-
3 CHAPTER 201G. MASSACHUSETTS REVISED UNIFORM FIDUCIARY ACCESS
4 TO DIGITAL ASSETS ACT
5 Section 1. Short title
6 This chapter may be cited as the Massachusetts Revised Uniform Fiduciary Access to
7 Digital Assets Act.
8 Section 2. Definitions
9 In this chapter:
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10 (1) “Account” means an arrangement under a terms-of-service agreement in which a
11 custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides
12 goods or services to the user.
13 (2) “Agent” means an attorney-in-fact granted authority under a durable or nondurable
14 power 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
17 person with which a user has had an electronic communication, the time and date of the
18 communication, and the electronic address of the person.
19 (5) “Conservator” means a person appointed by a court to manage the estate of a
20 protected person and includes a limited conservator, temporary conservator, special conservator,
21 and those individuals specifically authorized under section 5-408 of chapter 190B.
22 (6) “Content of an electronic communication” means information concerning the
23 substance 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
26 to the public or is carried or maintained by a custodian providing a remote-computing service to
27 the public; and
28 (C) is not readily accessible to the public.
29 (7) “Court” means the probate and family court department of the trial court.
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30 (8) “Custodian” means a person that carries, maintains, processes, receives, or stores a
31 digital asset of a user.
32 (9) “Designated recipient” means a person chosen by a user using an online tool to
33 administer digital assets of the user.
34 (10) “Digital asset” means an electronic record in which an individual has a right or
35 interest. The term does not include an underlying asset or liability unless the asset or liability is
36 itself an electronic record.
37 (11) “Electronic” means relating to technology having electrical, digital, magnetic,
38 wireless, optical, electromagnetic, or similar capabilities.
39 (12) “Electronic communication” has the meaning set forth in 18 U.S.C. section
40 2510(12), as amended.
41 (13) “Electronic-communication service” means a custodian that provides to a user the
42 ability to send or receive an electronic communication.
43 (14) “Fiduciary” means an original, additional, or successor personal representative,
44 conservator, agent, or trustee.
45 (15) “Information” means data, text, images, videos, sounds, codes, computer programs,
46 software, databases, or the like.
47 (16) “Online tool” means an electronic service provided by a custodian that allows the
48 user, in an agreement distinct from the terms-of-service agreement between the custodian and
49 user, to provide directions for disclosure or nondisclosure of digital assets to a third person.
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50 (17) “Person” means an individual, estate, business or nonprofit entity, public
51 corporation, government or governmental subdivision, agency, or instrumentality, or other legal
52 entity.
53 (18) “Personal representative” means an executor, administrator, special administrator, or
54 person that performs substantially the same function under law of this commonwealth other than
55 this chapter.
56 (19) “Power of attorney” means a record that grants an agent authority to act in the place
57 of a principal.
58 (20) “Principal” means an individual who grants authority to an agent in a power of
59 attorney.
60 (21) “Protected person” means an individual for whom a conservator has been appointed.
61 The term includes an individual for whom a petition for the appointment of a conservator is
62 pending.
63 (22) “Record” means information that is inscribed on a tangible medium or that is stored
64 in an electronic or other medium and is retrievable in perceivable form.
65 (23) “Remote-computing service” means a custodian that provides to a user computer-
66 processing services or the storage of digital assets by means of an electronic communications
67 system, as defined in 18 U.S.C. section 2510(14), as amended.
68 (24) “Terms-of-service agreement” means an agreement that controls the relationship
69 between a user and a custodian.
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70 (25) “Trustee” means a fiduciary with legal title to property under an agreement or
71 declaration that creates a beneficial interest in another. The term includes an original, additional,
72 or successor trustee, whether or not appointed or confirmed by the court.
73 (26) “User” means a person that has an account with a custodian.
74 (27) “Will” includes a codicil, testamentary instrument that only appoints a personal
75 representative, and an instrument that revokes or revises a testamentary instrument.
76 Section 3. Applicability
77 (a) This chapter applies to:
78 (1) a fiduciary acting under a will or power of attorney executed before, on, or after the
79 effective date of this chapter;
80 (2) a personal representative acting for a decedent who died before, on, or after the
81 effective date of this chapter;
82 (3) a conservatorship proceeding commenced before, on, or after the effective date of this
83 chapter; and
84 (4) a trustee acting under a trust created before, on, or after the effective date of this
85 chapter.
86 (b) This chapter applies to a custodian if the user resides in this commonwealth or resided
87 in this commonwealth at the time of the user’s death.
88 (c) This chapter does not apply to a digital asset of an employer used by an employee in
89 the ordinary course of the employer’s business.
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 90 Section 4. User direction for disclosure of digital assets
91 (a) A user may use an online tool to direct the custodian to disclose or not to disclose
92 some or all of the user’s digital assets, including the content of electronic communications. If the
93 online tool allows the user to modify or delete a direction at all times, a direction regarding
94 disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of
95 attorney, or other record.
96 (b) If a user has not used an online tool to give direction under subsection (a) or if the
97 custodian has not provided an online tool, the user may allow or prohibit in a will, trust, power of
98 attorney, or other record, disclosure to a fiduciary of some or all of the user’s digital assets,
99 including the content of electronic communications sent or received by the user.
100 (c) A user’s direction under subsection (a) or (b) overrides a contrary provision in a
101 terms-of-service agreement that does not require the user to act affirmatively and distinctly from
102 the user’s assent to the terms of service.
103 Section 5. Terms-of-service agreement
104 (a) This chapter does not change or impair a right of a custodian or a user under a terms-
105 of-service agreement to access and use digital assets of the user.
106 (b) This chapter does not give a fiduciary any new or expanded rights other than those
107 held by the user for whom, or for whose estate, the fiduciary acts or represents.
108 (c) A fiduciary’s access to digital assets may be modified or eliminated by a user, by
109 federal law, or by a terms-of-service agreement if the user has not provided direction under
110 section 4.
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111 Section 6. Procedure for disclosing digital assets
112 (a) When disclosing digital assets of a user under this chapter, the custodian may at its
113 sole discretion:
114 (1) grant a fiduciary or designated recipient full access to the user’s account;
115 (2) grant a fiduciary or designated recipient partial access to the user’s account sufficient
116 to perform the tasks with which the fiduciary or designated recipient is charged; or
117 (3) provide a fiduciary or designated recipient a copy in a record of any digital asset that,
118 on the date the custodian received the request for disclosure, the user could have accessed if the
119 user were alive and had full capacity and access to the account.
120 (b) A custodian may assess a reasonable administrative charge for the cost of disclosing
121 digital assets under this chapter.
122 (c) A custodian need not disclose under this chapter a digital asset deleted by a user.
123 (d) If a user directs or a fiduciary requests a custodian to disclose under this chapter
124 some, but not all, of the user’s digital assets, the custodian need not disclose the assets if
125 segregation of the assets would impose an undue burden on the custodian. If the custodian
126 believes the direction or request imposes an undue burden, the custodian or fiduciary may seek
127 an order from the court to disclose:
128 (1) a subset limited by date of the user’s digital assets;
129 (2) all of the user’s digital assets to the fiduciary or designated recipient;
130 (3) none of the user’s digital assets; or
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131 (4) all of the user’s digital assets to the court for review in camera.
132 Section 7. Disclosure of content of electronic communications of deceased user
133 If a deceased user consented or a court directs disclosure of the contents of electronic
134 communications of the user, the custodian shall disclose to the personal representative of the
135 estate of the user the content of an electronic communication sent or received by the user if the
136 representative gives the custodian:
137 (1) a written request for disclosure in physical or electronic form;
138 (2) a certified copy of the death certificate of the user;
139 (3) an attested copy of the letter of appointment of the representative or a small-estate
140 affidavit or court order;
141 (4) unless the deceased user provided direction using an online tool, a copy of the user’s
142 will, trust, or other record evidencing the user’s consent to disclosure of the content of electronic
143 communications; and
144 (5) if requested by the custodian:
145 (A) a number, username, address, or other unique subscriber or account identifier
146 assigned by the custodian to identify the user’s account;
147 (B) evidence linking the account to the user; or
148 (C) a finding by the court that:
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149 (i) the user had a specific account with the custodian, identifiable by the information
150 specified in subparagraph (A);
151 (ii) disclosure of the content of electronic communications of the user would not violate
152 18 U.S.C. section 2701 et seq., as amended, 47 U.S.C. section 222, as amended, or other
153 applicable law;
154 (iii) unless the user provided direction using an online tool, the user consented to
155 disclosure of the content of electronic communications; or
156 (iv) disclosure of the content of electronic communications of the user is reasonably
157 necessary for administration of the estate.
158 Section 8. Disclosure of other digital assets of deceased user
159 Unless the deceased user prohibited disclosure of digital assets or the court directs
160 otherwise, a custodian shall disclose to the personal representative of the estate of a deceased
161 user a catalogue of electronic communications sent or received by the user and digital assets,
162 other than the content of electronic communications, of the user, if the representative gives the
163 custodian:
164 (1) a written request for disclosure in physical or electronic form;
165 (2) a certified copy of the death certificate of the user;
166 (3) an attested copy of the letter of appointment of the representative or a small-estate
167 affidavit or court order; and
168 (4) if requested by the custodian:
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169 (A) a number, username, address, or other unique subscriber or account identifier
170 assigned by the custodian to identify the user’s account;
171 (B) evidence linking the account to the user;
172 (C) an affidavit stating that disclosure of the user’s digital assets is reasonably necessary
173 for administration of the estate; or
174 (D) a finding by the court that:
175 (i) the user had a specific account with the custodian, identifiable by the information
176 specified in subparagraph (A); or
177 (ii) disclosure of the user’s digital assets is reasonably necessary for administration of the
178 estate.
179 Section 9. Disclosure of content of electronic communications of principal
180 To the extent a power of attorney expressly grants an agent authority over the content of
181 electronic communications sent or received by the principal and unless directed otherwise by the
182 principal or the court, a custodian shall disclose to the agent the content if the agent gives the
183 custodian:
184 (1) a written request for disclosure in physical or electronic form;
185 (2) an original or copy of the power of attorney expressly granting the agent authority
186 over the content of electronic communications of the principal;
187 (3) a certification by the agent, under penalty of perjury, that the power of attorney is in
188 effect; and
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189 (4) if requested by the custodian:
190 (A) a number, username, address, or other unique subscriber or account identifier
191 assigned by the custodian to identify the principal’s account; or
192 (B) evidence linking the account to the principal.
193 Section 10. Disclosure of other digital assets of principal
194 Unless otherwise ordered by the court, directed by the principal, or provided by a power
195 of attorney, a custodian shall disclose to an agent with specific authority over digital assets or
196 general authority to act on behalf of a principal a catalogue of electronic communications sent or
197 received by the principal and digital assets, other than the content of electronic communications,
198 of the principal if the agent gives the custodian:
199 (1) a written request for disclosure in physical or electronic form;
200 (2) an original or a copy of the power of attorney that gives the agent specific authority
201 over digital assets or general authority to act on behalf of the principal;
202 (3) a certification by the agent, under penalty of perjury, that the power of attorney is in
203 effect; and
204 (4) if requested by the custodian:
205 (A) a number, username, address, or other unique subscriber or account identifier
206 assigned by the custodian to identify the principal’s account; or
207 (B) evidence linking the account to the principal.
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