Wisconsin Statutes 711.12 – Fiduciary duty and authority
Current as of: 2023 | Check for updates
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Terms Used In Wisconsin Statutes 711.12
- 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.
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Decedent: A deceased person.
- 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.
- Following: when used by way of reference to any statute section, means the section next following that in which the reference is made. See Wisconsin Statutes 990.01
- Fraud: Intentional deception resulting in injury to another.
- in writing: includes any representation of words, letters, symbols or figures. See Wisconsin Statutes 990.01
- Person: includes all partnerships, associations and bodies politic or corporate. See Wisconsin Statutes 990.01
- Personal property: includes money, goods, chattels, things in action, evidences of debt and energy. See Wisconsin Statutes 990.01
- Personal property: All property that is not real property.
- Personal representative: means a person, however denominated, who is authorized to administer a decedent's estate. See Wisconsin Statutes 990.01
- 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
- Property: includes real and personal property. See Wisconsin Statutes 990.01
(1) The legal duties imposed on a fiduciary with the authority to manage tangible property apply to a fiduciary’s management of digital property.
(2)
(a) A fiduciary’s or designated recipient’s authority with respect to a user’s digital property may not be used to impersonate the user and is subject to all of the following:
1. Except as otherwise provided in s. 711.04, the applicable terms of service.
2. Other applicable law, including copyright law.
(b) A fiduciary’s authority is limited by the scope of the fiduciary’s duties.
(3) A fiduciary with authority over the property of a decedent, protected person, principal, or settlor has the right to access any digital property in which the decedent, protected 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 digital property of the decedent, protected person, principal, or settlor for the purpose of applicable computer fraud and unauthorized computer access laws, including s. 943.70.
(5)
(a) A fiduciary with authority over the tangible personal property of a decedent, protected person, principal, or settlor has the right to access the tangible personal property and any digital property stored in the tangible personal property.
(b) A fiduciary with authority over the tangible personal property of a decedent, protected person, principal, or settlor is an authorized user of digital property stored in the tangible personal property for the purpose of computer fraud and unauthorized computer access laws, including s. 943.70.
(6) A custodian may disclose information in a user’s account to a fiduciary of the user when the information is required to terminate an account used to access digital property 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 all of the following:
(a) If the user is deceased, a certified copy of the death record of the user.
(b) Any of the following that grants the fiduciary authority over the user’s account:
1. A certified copy of the letters of appointment of a personal representative.
2. A certified copy of the letters of special administration.
3m. An original or copy of an affidavit under s. 867.03.
4. An original or copy of an application under s. 867.046.
5. An original or copy of a power of attorney and a certification by the agent that the power of attorney is in effect.
6. A certification of the trust under s. 701.1013.
(c) If requested by the custodian, any of the following:
1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account.
2. Evidence linking the account to the user.
3. A finding by the court that the user had a specific account with the custodian, identifiable by the information specified in subd. 1.
(8)
(a) A fiduciary has no duty to review any digital property of a decedent, settlor, principal, or protected person or to secure or preserve any digital property that is not in the possession of the fiduciary, unless any of the following applies:
1. The fiduciary has knowledge, or has reason to believe, that the decedent’s estate, settlor’s trust, principal, or protected person has digital property of economic value.
2. The fiduciary receives a written request from a beneficiary who has an interest in the digital property of the decedent’s estate, settlor’s trust, principal, or protected person.
(b) A fiduciary’s reasonable efforts to review, secure, or preserve digital property satisfy a duty to review, secure, or preserve digital property under par. (a).
(c) If a fiduciary reviews, secures, or preserves a portion of the digital property of a decedent, settlor, principal, or protected person and the fiduciary does not have a duty to do so, the reviewing, securing, or preserving of a portion of digital property does not give rise to a duty to review, secure, or preserve the remaining portion of the digital property of the decedent, settlor, principal, or protected person.
(d) Unless a fiduciary has a duty to review, secure, or preserve digital property under par. (a), a fiduciary is not liable for failing to review, secure, or preserve any digital property of a decedent, settlor, principal, or protected person.