Washington Code 11.120.150 – Fiduciary duty and authority
Current as of: 2023 | Check for updates
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(1) The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including:
Terms Used In Washington Code 11.120.150
- 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.
- Decedent: A deceased person.
- Electronic: means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. See Washington Code 11.02.005
- 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: A trustee, executor, or administrator.
- Fraud: Intentional deception resulting in injury to another.
- person: may be construed to include the United States, this state, or any state or territory, or any public or private corporation or limited liability company, as well as an individual. See Washington Code 1.16.080
- Personal property: All property that is not real property.
- 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
(a) The duty of care;
(b) The duty of loyalty; and
(c) The duty of confidentiality.
(2) A fiduciary’s or designated recipient’s authority with respect to a digital asset of a user:
(a) Except as otherwise provided in RCW 11.120.040, is subject to the applicable terms-of-service agreement;
(b) Is subject to other applicable law, including copyright law;
(c) In the case of a fiduciary, is limited by the scope of the fiduciary’s duties; and
(d) May not be used to impersonate the user.
(3) A fiduciary with authority over the property of a decedent, incapacitated person, principal, or settlor has the right to access any digital asset in which the decedent, incapacitated person, principal, or settlor had a right or interest and that is not held by a 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, incapacitated person, principal, or settlor for the purpose of applicable computer fraud and unauthorized computer access laws.
(5) A fiduciary with authority over the tangible, personal property of a decedent, incapacitated person, principal, or settlor:
(a) Has the right to access the property and any digital asset stored in it; and
(b) Is an authorized user for the purpose of computer fraud and unauthorized computer access laws.
(6) A custodian may disclose information in an account to a fiduciary of the user when 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 custodian to terminate the user’s account. A request for termination must be in writing, in either physical or electronic form, and accompanied by:
(a) If the user is deceased, a certified copy of the death certificate of the user;
(b) A certified copy of the letter of appointment of the representative or a small estate affidavit or court order, court order, power of attorney, or trust giving the fiduciary authority over the account; and
(c) If requested by the custodian:
(i) A number, user name, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
(ii) Evidence linking the account to the user; or
(iii) A finding by the court that the user had a specific account with the custodian, identifiable by the information specified in (c)(i) of this subsection.
[ 2016 c 140 § 15.]