A. The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including:

1. (1) the duty of care;
2. (2) the duty of loyalty; and

3. (3) the duty of confidentiality.

   B. A fiduciary's or designated recipient's authority with respect to a digital asset of a user:

4. (1) except as otherwise provided in Section 4 of the Revised Uniform Fiduciary Access to Digital Assets Act [46-13-4 NMSA 1978], is subject to the applicable terms of service;
5. (2) is subject to other applicable law, including copyright law;
6. (3) in the case of a fiduciary, is limited by the scope of the fiduciary's duties; and

7. (4) may not be used to impersonate the user.

   C. 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 custodian or subject to a terms-of-service agreement.

   D. 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 the Computer Crimes Act [30-45-1 to 30-45-7 NMSA 1978].

   E. A fiduciary with authority over the tangible, personal property of a decedent, protected person, principal or settlor:

8. (1) has the right to access the property and any digital asset stored in it; and

9. (2) is an authorized user for the purpose of computer-fraud and unauthorized-computer-access laws, including those offenses enumerated in the Computer Crimes Act.

   F. 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.

   G. A fiduciary of a user may request a custodian to terminate the user's account. A request for termination shall be in writing, in either physical or electronic form, and accompanied by:

10. (1) if the user is deceased, a certified copy of the death certificate of the user;
11. (2) a certified copy of the letters of administration or letters testamentary of the personal representative or a small estate affidavit pursuant to the provisions of Section 45-3-1201 NMSA 1978, court order, power of attorney or trust giving the fiduciary authority over the account; and

12. (3) if requested by the custodian:

    1. (a) a number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the user's account;
    2. (b) evidence linking the account to the user; or
    3. (c) a finding by the court that the user had a specific account with the custodian, identifiable by the information specified in Subparagraph (a) of this paragraph.

History: Laws 2017, ch. 72, § 15.

ANNOTATIONS

Effective dates. — Laws 2017, ch. 72, § 20 made Laws 2017, ch. 72, § 15 effective January 1, 2018.