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Senate of Pennsylvania
Session of 2019 - 2020 Regular Session


Posted: December 5, 2018 10:36 AM
From: Senator Thomas H. Killion
To: All Senate members
Subject: Fiduciary Access to Digital Assets Act
I plan to introduce legislation which will give people the power to plan for the management and disposition of their digital assets in the same way they can make plans for their tangible property: by providing instructions in a will, trust, or power of attorney.

The Fiduciary Access to Digital Assets Act will be based on proposed legislation developed by the Uniform Law Commission.

For most people, at least some of their property and communications are stored as data (e.g., photos, documents, e-books, music files, and video files) on a computer server and accessed via the Internet. Access to these digital assets is usually governed by the terms-of-service agreement provided by a private company. This can create problems when an account holder dies or otherwise loses the ability to manage their own digital assets.

This legislation will deal with four common types of fiduciaries:
1. Executors or administrators of deceased persons’ estates;
2. Court-appointed guardians or conservators of protected persons’ estates;
3. Agents appointed under powers of attorney; and
4. Trustees.

If a person fails to plan for the management and disposition of their digital assets, the same court-appointed fiduciary that manages the person’s tangible assets can manage the person’s digital assets.

Some companies provide an online planning option by which account holders can choose to delete or preserve their digital assets after some period of inactivity. This legislation will defer to the account holder’s choice in such circumstances, but will override any provision in a click-through terms-of-service agreement that conflicts with the account holder’s express instructions.

For a fiduciary to gain access to digital assets, this legislation will require the fiduciary to send a request to the custodian, accompanied by a certified copy of the document granting fiduciary authority.

This legislation will be designed to work in conjunction with Pennsylvania’s existing laws on probate, guardianship, trusts, and powers of attorney. It will simply extend a fiduciary’s existing authority over a person’s tangible assets to include the person’s digital assets, with the same fiduciary duties to act for the benefit of the represented person or estate.

The stakeholders who have worked with me to achieve the current form of the legislation have included: Uniform Law Commission and their Fiduciary Access to Digital Assets Committee; PA Bar Association and their Real Property, Probate and Trust Law Section; PA Bankers Association; Joint State Government Commission; Administrative Office of Pennsylvania Courts; and several technological companies. To date, there is no known opposition to the bill.

According to the National Conference of State Legislatures (NCSL), there are 46 states that have passed laws related to digital assets; 17 states enacted this year, including New Jersey, New York and Ohio.

This legislation will be similar to SB 827, PN 1290, of the 2017-2018 Legislative Session which was co-sponsored by the following Senators: Killion, Browne, Costa, Folmer, Haywood, Hughes, Laughlin, McGarrigle, Rafferty, Schwank and Vulakovich. The bill was unanimously approved by the Senate, but was not considered by the House Judiciary Committee prior to the last scheduled voting Session day.

Please join me in supporting this important legislation.

Introduced as SB320