21 Nov New Jersey and North Carolina Legislative Update
The New Jersey legislature has adopted the Uniform Fiduciary Access to Digital Assets Act, effective December 12, 2017. The North Carolina legislature recently enacted a pilot program authorizing certain local governments to publish required notices electronically, which applies to any notices published after the effective date of December 1, 2017.
NEW JERSEY ASSEMBLY BILL 3433
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, August 9, and September 7, 2017).
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 (an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity;
- Digital Asset (electronic record in which an individual 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, guardian, agent, or trustee).
The act sets forth the requirements, obligations and procedure for a custodian to provide a designated recipient or fiduciary with access 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. The New Jersey enactment also imposes these duties on any designated recipient, not just a fiduciary.
North Carolina Senate Bill 181
“Governing Board” means the body elected or appointed as the board of county commissioners, city council, or county board of elections.
The governing board may adopt an ordinance providing that any notice it is required by law to publish or advertise, whether under any state general law or local act, may be published electronically in lieu of or in addition to the required publication or advertisement. Such an ordinance may cover all notices or clearly identified category of notices.
Upon adoption of an ordinance described above, the governing board must publish specific instructions regarding how to access all notices published electronically. This must be published at least once a month for 12 months in a newspaper having general circulation for that jurisdiction. The pilot program provides specific requirements for notices published under such an ordinance; however, the ordinance cannot supersede any requirement for notice by mail to certain persons or classes of persons or the posting of signs on certain property.
Additionally, Guilford County is authorized to publish legal notices via the count-maintained website in lieu of publishing in a newspaper.