Michigan Laws 700.1015 – Duties and authority of fiduciary
Current as of: 2023 | Check for updates
|
Other versions
Terms Used In Michigan Laws 700.1015
- Account: means an arrangement under a terms-of-service agreement in which the digital custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides goods or services to the user. See Michigan Laws 700.1002
- 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.
- Court: means the probate court or, when applicable, the circuit court. See Michigan Laws 700.1002
- Decedent: A deceased person.
- Designated recipient: means a person chosen by a user using an online tool to administer digital assets of the user. See Michigan Laws 700.1002
- Digital asset: means an electronic record in which a user has a right or interest. See Michigan Laws 700.1002
- Digital custodian: means a person that carries, maintains, processes, receives, or stores a digital asset of a user. See Michigan Laws 700.1002
- Electronic: means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. See Michigan Laws 700.1002
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Fiduciary: means a person who is an original, additional, or successor personal representative, conservator, agent, or trustee. See Michigan Laws 700.1002
- Fiduciary: A trustee, executor, or administrator.
- Fraud: Intentional deception resulting in injury to another.
- in writing: shall be construed to include printing, engraving, and lithographing; except that if the written signature of a person is required by law, the signature shall be the proper handwriting of the person or, if the person is unable to write, the person's proper mark, which may be, unless otherwise expressly prohibited by law, a clear and classifiable fingerprint of the person made with ink or another substance. See Michigan Laws 8.3q
- Information: means data, text, images, videos, sounds, codes, computer programs, software, databases, or the like. See Michigan Laws 700.1002
- Letters: means that term as described in section 1105 of the estates and protected individuals code, 1998 PA 386, MCL 700. See Michigan Laws 700.1002
- Person: means that term as defined in section 1106 of the estates and protected individuals code, 1998 PA 386, MCL 700. See Michigan Laws 700.1002
- Personal property: All property that is not real property.
- Personal representative: means that term as defined in section 1106 of the estates and protected individuals code, 1998 PA 386, MCL 700. See Michigan Laws 700.1002
- Principal: means a person that grants authority to an agent in a power of attorney. See Michigan Laws 700.1002
- Protected person: includes any of the following:
(i) A protected individual. See Michigan Laws 700.1002Settlor: means that term as defined in section 7103 of the estates and protected individuals code, 1998 PA 386, MCL 700. See Michigan Laws 700.1002 Terms-of-service agreement: means an agreement that controls the relationship between a user and a digital custodian. See Michigan Laws 700.1002 Trust: means that term as defined in section 1107 of the estates and protected individuals code, 1998 PA 386, MCL 700. See Michigan Laws 700.1002 User: means a person that has an account with a digital custodian. See Michigan Laws 700.1002
(1) The legal duties imposed on a fiduciary charged with managing tangible personal property apply to the management of digital assets, including all of the following:
(a) The duty of care.
(b) The duty of loyalty.
(c) The duty of confidentiality.
(2) All of the following apply to a fiduciary‘s or designated recipient‘s authority with respect to a digital asset of a user:
(a) Except as otherwise provided in section 4, it is subject to the applicable terms-of-service agreement.
(b) It is subject to other applicable laws, including copyright law.
(c) For a fiduciary, it is limited to the scope of the fiduciary’s duties.
(d) It may not be used to impersonate the user.
(3) A fiduciary with authority over the property of a decedent, protected person, principal, or settlor has the right to access any digital asset in which the decedent, protected person, principal, or settlor had a right or interest and that is not held by a digital custodian or subject to a terms-of-service agreement.
(4) A fiduciary acting within the scope of the fiduciary’s duties is an authorized user of the property of the decedent, protected person, principal, or settlor for the purpose of applicable computer fraud and unauthorized computer access laws, including, but not limited to, all of the following:
(a) Section 5 of 1979 PA 53, MCL 752.795.
(b) Section 540 of the Michigan penal code, 1931 PA 328, MCL 750.540.
(c) Section 157n of the Michigan penal code, 1931 PA 328, MCL 750.157n, to the extent that the property is a financial transaction device as that term is defined in section 157m of the Michigan penal code, 1931 PA 328, MCL 750.157m.
(5) All of the following apply to a fiduciary with authority over tangible personal property of a decedent, protected person, principal, or settlor:
(a) The fiduciary has the right to access the property and any digital asset stored in it.
(b) The fiduciary is an authorized user for the purposes of computer fraud and unauthorized computer access laws, including, but not limited to, all of the following:
(i) Section 5 of 1979 PA 53, MCL 752.795.
(ii) Section 540 of the Michigan penal code, 1931 PA 328, MCL 750.540.
(iii) Section 157n of the Michigan penal code, 1931 PA 328, MCL 750.157n, to the extent that the tangible personal property is a financial transaction device as that term is defined in section 157m of the Michigan penal code, 1931 PA 328, MCL 750.157m.
(6) A digital custodian may disclose information in an account to a fiduciary of the user if the information is required to terminate an account used to access digital assets licensed to the user.
(7) A fiduciary of a user may request a digital custodian to terminate the user’s account. A request for termination must be in writing, in either physical or electronic form, and accompanied by all of the following:
(a) If the user is deceased, a copy of the death certificate of the user.
(b) A certified copy of the letters of authority of the personal representative, small-estate affidavit, or court order, power of attorney, or trust giving the fiduciary authority over the account.
(c) If requested by the digital custodian, any of the following:
(i) A number, username, address, or other unique subscriber or account identifier assigned by the digital custodian to identify the user’s account.
(ii) Evidence linking the account to the user.
(iii) A finding of the court that the user had a specific account with the digital custodian, identifiable by the information specified in subparagraph (i).
(8) A fiduciary is immune from liability for an action done in good faith in compliance with this act.