07 Sep Alaska, Montana and Nevada Legislative Update
The Alaska, Montana and Nevada legislatures have adopted the Revised Uniform Fiduciary Access to Digital Assets Act. The uniform act has been enacted in various states on which we have previously reported (see our Distribution Memoranda dated September 1, 2016, with updates dated February 17, March 30, June 1, July 13, and August 9, 2017). Montana has also amended a provision of the Montana Mortgage Act. The Alaska legislation is effective October 31, 2017, and the Montana and Nevada legislation is effective October 1, 2017.
ALASKA HOUSE BILL 108
MONTANA SENATE BILL 118
NEVADA ASSEMBLY BILL 239
The acts in each state have minor differences, but the primary purpose is to define digital assets and the parties involved, provide user direction and procedure for disclosure of digital assets, providing for fiduciary duties related to digital assets. Some of the definitions include the following:
- Custodian (person that carries, maintains, processes, receives or stores a digital asset of a user);
- Person (a natural person, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity;
- Digital Asset (electronic record in which a natural person has a right or interest, but does not include an underlying asset or liability unless the asset or liability is itself an electronic record);
- User (person who has an account with a custodian);
- Designated recipient (person chosen by a user to administer digital assets of the user – to be chosen by online tool);
- Fiduciary (original, additional, or successor personal representative, trustee, guardian, or agent).
The act sets forth the requirements, obligations and procedure for a custodian to provide a designated recipient or fiduciary with access (either partial or full) to the digital assets of a user. A fiduciary has legal duties with regard to management of digital assets, including the duty of care, the duty of loyalty, and the duty of confidentiality.
Montana Senate Bill 21
The amendment clarified that a mortgage servicer may not fail to make all payments from any escrow account held for the borrower for insurance, taxes, and other charges with respect to the property in a timely manner so as to ensure that late penalties are not assessed or other negative consequences do not result regardless of whether the loan is delinquent unless there are not sufficient funds in the account to cover the payments and the mortgage servicer has a reasonable basis to believe that recovery of the funds will not be possible (the “do not” was previously omitted).