Delaware Code Title 12 Sec. 5005 – Recovery of digital assets and digital accounts from a custodian
(a) A fiduciary with authority over digital assets or digital accounts of an account holder under this chapter shall have the same access as the account holder, and is deemed to:
(1) Have the lawful consent of the account holder; and
(2) Be an authorized agent or user under all applicable state and federal law and regulations and any end user license agreement.
Terms Used In Delaware Code Title 12 Sec. 5005
- Account holder: means a decedent, a disabled person pursuant to Chapter 39 of this title, a principal of a durable personal power of attorney pursuant to Chapter 49A of this title, a settlor of a trust which was revocable until the time of the settlor's death or incapacity, or a trust, whether or not revocable, that invokes this chapter. See Delaware Code Title 12 Sec. 5002
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- Catalogue of electronic communications: means information that identifies each person with which an account holder has had an electronic communication, the time and date of the communication, and the electronic address of the person. See Delaware Code Title 12 Sec. 5002
- Content of an electronic communication: means information not readily accessible to the public concerning the substance or meaning of an electronic communication. See Delaware Code Title 12 Sec. 5002
- Court: means the Court of Chancery for the State. See Delaware Code Title 12 Sec. 5002
- Custodian: includes an electronic communication service, as the term is defined by the Electronic Communications Privacy Act, 18 U. See Delaware Code Title 12 Sec. 5002
- Digital account: means an electronic system for creating, generating, sending, sharing, communicating, receiving, storing, displaying, or processing information which provides access to a digital asset which currently exist or may exist as technology develops or such comparable items as technology develops, stored on any type of digital device, regardless of the ownership of the digital device upon which the digital asset is stored, including but not in any way limited to, email accounts, social network accounts, social media accounts, file sharing accounts, health insurance accounts, health-care accounts, financial management accounts, domain registration accounts, domain name service accounts, web hosting accounts, tax preparation service accounts, online store accounts and affiliate programs thereto, and other online accounts which currently exist or may exist as technology develops or such comparable items as technology develops. See Delaware Code Title 12 Sec. 5002
- Digital asset: means data, text, emails, documents, audio, video, images, sounds, social media content, social networking content, codes, health care records, health insurance records, computer source codes, computer programs, software, software licenses, databases, or the like, including the usernames and passwords, created, generated, sent, communicated, shared, received, or stored by electronic means on a digital device. See Delaware Code Title 12 Sec. 5002
- Electronic: means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. See Delaware Code Title 12 Sec. 5002
- End user license agreement: means an agreement between an account holder and a custodian establishing the rights and responsibilities of each. See Delaware Code Title 12 Sec. 5002
- Fiduciary: A trustee, executor, or administrator.
- Fiduciary: includes a personal representative appointed by the Register of Wills, a guardian appointed pursuant to Chapter 39 of this title, an agent under a durable personal power of attorney pursuant to Chapter 49A of this title, a trustee, or an adviser pursuant to § 3313 of this title. See Delaware Code Title 12 Sec. 5002
- Governing instrument: means a will, trust, a durable personal power of attorney pursuant to Chapter 49 or Chapter 49A of this title, order appointing a guardian over the property of the account holder, or other dispositive, appointive, or nominative instrument of any similar type. See Delaware Code Title 12 Sec. 5002
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Guardian: is a "guardian of the person" as that term is used in this title. See Delaware Code Title 12 Sec. 39A-101
- Person: means an individual, corporation, statutory trust, estate, trust, partnership (general or limited), limited liability company, association, joint venture, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity. See Delaware Code Title 12 Sec. 5002
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- State: means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States. See Delaware Code Title 12 Sec. 39A-101
- Trustee: A person or institution holding and administering property in trust.
- Valid written request: means a request made by a fiduciary with authority over the digital assets or digital accounts of another person that complies on its face with the requirements of § 5005 of this title. See Delaware Code Title 12 Sec. 5002
(b) Upon receipt of a valid written request sent pursuant to the requirements of subsection (c) of this section, from a fiduciary seeking access to, transfer of, copy of, or destruction of a digital asset or digital account, a custodian shall provide the fiduciary the applicable access, transfer, copy, or destruction of the digital asset or digital account, unless it would be technologically impracticable to provide access to, transfer of, copy of, or destruction of the digital asset or digital account to the fiduciary or to the account holder. Unless otherwise provided by a governing instrument or a court order, a fiduciary may access:
(1) The content of an electronic communication, as the term is defined by the Electronic Communications Privacy Act, 18 U.S.C. § 2510, sent or received by the account holder only if the custodian is permitted to disclose the content under the Electronic Communications Privacy Act, 18 U.S.C. § 2702(b);
(2) The catalogue of electronic communications sent or received by the account holder; and
(3) Any other digital account or digital asset of the account holder.
(c) A valid written request under subsection (b) of this section must:
(1) If by a personal representative, be accompanied by a certified copy of the letters testamentary or letters of administration which grant authority to the personal representative to administer the estate of the deceased account holder;
(2) If by a guardian, be accompanied by a certified copy of the court order that gives the guardian authority over the property of the disabled person;
(3) If by an agent, be accompanied by a certified copy of the power of attorney that authorizes the agent to exercise authority over the affairs of the principal and which includes an authorization regarding the principal’s digital assets or digital accounts and, if the power of attorney provides that the agent’s power to access a digital account or digital asset is conditioned upon the account holder being incapacitated, be accompanied by a certification from a licensed physician or an order of the Court stating the account holder is incapacitated;
(4) If by a trustee, be accompanied by a certified copy of the trust instrument, or a certification of trust pursuant to § 3591 of this title, and, if the trustee’s power to access a digital account or digital asset is conditioned upon the account holder being incapacitated, be accompanied by a certification from a licensed physician or an order of the Court stating the account holder is incapacitated; or
(5) If by a fiduciary not otherwise specified herein, be accompanied by a certified copy of the governing instrument that authorizes the fiduciary to exercise authority over digital assets or digital accounts, or in the case of a fiduciary whose authority is granted in a trust instrument, a certification of trust pursuant to § 3591 of this title.
(d) A custodian shall comply with a valid written request not later than 60 days after receipt of the valid written request. If the custodian fails to comply, the fiduciary may apply to the court for an order directing compliance.
(e) For purposes of this section, a “certified copy” of a trust, power of attorney, certification of trust, or governing instrument means a copy accompanied by an affidavit attesting that the copy is a true, exact, complete and unaltered photocopy of the original, and that to the best of the affiant’s knowledge, said document remains in full force and effect.