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California Access to Digital Assets Act 1. Revised Uniform Fiduciary Access to Digital Assets Act (2016) Mina N. Sirkin, Esq. SIRKIN LAW GROUP, P.C. 21550 Oxnard St. #300 Woodland Hills, CA 91367 818-340-4479 MSirkin@SirkinLaw.com Probate Attorney Los Angeles Copyright2016MinaSirkin 2. What is a Digital Asset? • PROBATE CODE SECTIONS 870-883 • Electronic record in which an individual has an interest. • It is NOT the underlying asset or liability, unless the asset or liability is itself an electronic record. Copyright2016MinaSirkin 3. Who can get the information? • Executor • Administrator • Trustee • Special Administrator • Someone with substantially the same function • Agent under a Power of Attorney • ***The legislature forgot to add the term Conservator. Copyright2016MinaSirkin 4. Important Dates • For all fiduciaries acting under a will BEFORE or AFTER 1/1/17 • Personal Representatives of persons who died before or after 1/1/17 • Trustee of a trust created before or after 1/1/17 • Custodian of the digital asset if the user resided in Ca or resided in at the time of death • DOES NOT APPLY TO: Digital assets of an employer used by an employee Copyright2016MinaSirkin 5. Three Methods & Priorities • 1. User sets up permissions in an ONLINE TOOL • 2. If no ONLINE TOOL, then look to Will, Trust, Power of Attorney, or other record • 3. Default: If no direction in the Will, Trust or Power of Attorney, then look to the terms-of-service agreement in the account Copyright2016MinaSirkin 6. What will the account Custodian Disclose? • Some will give full access • Some will give just the outer shell or meta data • Some will give part access EXCEPT: • Not required to disclose any information if it causes undue burden • Can charge a reasonable administrative charge to get the information • Not required to give you anything the user deleted • Remedy: Court instructions via a petition Copyright2016MinaSirkin 7. How to get the information? • Written request for disclosure in physical or electronic form • Death Certificate • Letter of Appointment from the Court • Copy of of Will/Trust or Power of attorney or Consent by User • Account number, username, address • Evidence linking the account to the user, or to the trust • WHAT YOU WILL GET: • Catalogue of electronic communications of the user Copyright2016MinaSirkin 8. Duties of Digital Fiduciary • Duty of loyalty • Duty of Care • Duty of Confidentiality • Still subject to the user-service- agreement • Fiduciary may not impersonate the user • Custodian does not have to share user passwords or protected devices • Fiduciary can request that the account be terminated, if the user is deceased, but must present documents Copyright2016MinaSirkin 9. About Mina N. Sirkin California Board Certified Specialist Attorney i Estate Planning, Probate & Trust Law SIRKIN LAW GROUP, P.C. 21550 Oxnard St. #300 Woodland Hills, CA 91367 Tel: 818.340.4479 Msirkin@SirkinLaw.com Los Angeles Probate Lawyer Copyright2016MinaSirkin
California Fiduciary Access to Digital Assets Act