Sb 301 - Wills, Trusts, and Administration of Estates

• Jurisdiction: Georgia,United States
• Publication year: 2018
• Citation: Vol. 35 No. 1

SB 301 - Wills, Trusts, and Administration of Estates

Morgan S. Ownbey
Georgia State University College of Law, mownbey1@student.gsu.edu

Paul M. Napolitano
Georgia State University College of Law, pnapolitano1@student.gsu.edu

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WILLS, TRUSTS, AND ADMINISTRATION OF ESTATES

Trustees: Amend Title 53 of the Official Code of Georgia Annotated, Relating to Wills, Trusts, and Administration of Estates, so as to Enact the "Revised Uniform Fiduciary Access to Digital Assets Act"; To Extend a Fiduciary's Powers to Include Managing Tangible Property and Digital Assets; To Provide for Exceptions; To Provide For a Short Title; To Provide for Definitions; To Amend Chapter 6B of Title 10, Article 2 of Chapter 9 of Title 15, Title 29, and Code Section 53-12-2 of Article 1 of Chapter 12 of Title 53 of the Official Code of Georgia Annotated, Relating to the "Uniform Power of Attorney Act," Jurisdiction, Power, and Duties of the Probate Court, Guardian and Ward, and Definitions for Trust, Respectively, so as to Provide Conforming Cross-References for a Conservator; To Provide for Related Matters; To Provide for an Effective Date; To Repeal Conflicting Laws; And for Other Purposes

Code Sections:	O.C.G.A. §§ 53-13-1, -2, -3, -10, -11, -12, -13, -14, -15, -16, -17, -18, -19, -20, -30, -31, -40 (amended); 10-6B-2, -40 (amended); 15-9-30 (amended); 29-3-22 (amended); 53-12-2 (amended)
Bill Number:	SB 301
Act Number:	560
Georgia Laws:	2018 Ga. Laws 1089
Summary:	The Act creates the "Revised Uniform Fiduciary Access to Digital Assets Act," extends fiduciaries' powers to include managing tangible property and digital assets, and provides conforming cross-references for a conservator.
Effective Date:	July 1, 2018

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History

Prior to Senate Bill (SB) 301, Georgia law allowed a fiduciary to have access and authority over physical property and assets but did not provide for the management of digital assets and electronic communications.¹ To that end, "[c]urrent law ha[d] not kept up with the pace of technology,"² and fiduciaries lacked the ability to manage digital assets—a necessary action in performing their required duties.³ SB 301 aims to address the disconnect between the pace of technology and Georgia statutory law by "extending fiduciary powers to include management of digital assets and electronic communications."⁴ The author of the bill, Senator John F. Kennedy (R-18th), said he supported the bill because the "legislation modernizes [Georgia's] state code to reflect our ever-changing technological society and the importance that each of us places on non-tangible assets in the [twenty-first] century."⁵ Senator Kennedy additionally emphasized that the bill "modernizes fiduciary law for the internet age" and "gives internet users the power to plan for the management and disposition of their digital assets."⁶

With SB 301, Georgia followed thirty-nine other states, including all of Georgia's neighboring states, in enacting this type of legislation.⁷ This legislative action stems from the Uniform Law Commission's (ULC) efforts in issuing the Revised Uniform Fiduciary Access to Digital Assets Act (Revised UFADAA or RUFADAA) in 2015.⁸ Issuing the RUFADAA in 2015 marked the culmination of three years of efforts to propose the uniform fiduciary access law.⁹ The ULC has existed for more than 120 years, and it

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seeks to "provide[] states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law."¹⁰ To become a ULC member, an individual "must be [a] lawyer[], qualified to practice law."¹¹ ULC members are "practicing lawyers, judges, legislators and legislative staff and law professors, who have been appointed by state [and D.C. and territory] governments . . . to research, draft and promote enactment of uniform state laws in areas of state law where uniformity is desirable and practical."¹² The ULC created a drafting committee in 2012 "to consider a uniform act to vest fiduciaries with the authority to manage and distribute digital assets, copy or delete digital assets, and access digital assets."¹³ The ULC approved UFADAA on July 16, 2014, and issued the revised uniform law, RUFADAA, in 2015.¹⁴ The reasons for the ULC's revisions to the uniform law and Georgia's delay in adopting the uniform law are discussed further in the Analysis section below.

Influential stakeholders responsible for SB 301's introduction include: South Georgia Alternative Dispute Resolution (ADR) Mediations and Arbitrations; leaders of the Legislative Committee of the State Bar's Fiduciary Law Section; RUFADAA advocates; prominent companies that store digital assets (including Google and Facebook); Georgia probate judges; other Georgia state judges; members of the Senate Committee on Judiciary; members of the House Judiciary Committee; and Georgia lawyers whose practice involves fiduciary duties.¹⁵ SB 301 allows fiduciaries to gain access to digital assets like they are able to access tangible assets.¹⁶ The ULC defines a fiduciary as "a trusted person with the legal authority to manage another's property" who also has a "duty to act in that person's best interest."¹⁷ For most people, "some of their property

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and communications are stored as data on a computer server and accessed via the internet."¹⁸ The ULC explains that "a person's digital property and electronic communications are referred to as 'digital assets' and the companies that store those assets on their servers are called 'custodians.'"¹⁹

Without this legislation, "[a]ccess to digital assets is usually governed by a terms-of-service agreement rather than by property law . . . [which] creates problems when internet users die or otherwise lose the ability to manage their own digital assets."²⁰ SB 301, which Georgia modeled after the RUFADAA, aims to address that problem by "extending fiduciary powers to include management of digital assets and electronic communications" and "provid[ing] custodians . . . of digital assets and electronic communications legal authority to deal with the fiduciaries of their users."²¹ Having access to digital accounts enables fiduciaries to fulfill their obligation to act in the decedent's best interest by taking actions to protect digital assets, including preventing identity theft, marshaling and collecting assets, and consoling grieving loved ones.²² In passing this law, Georgia lawmakers ensured that "[u]sers must give the fiduciary the right to access the content of digital assets," and the "fiduciary for digital assets is subject to the same fiduciary duties that apply to the management of tangible assets."²³

Bill Tracking of SB 301

Consideration and Passage by the Senate

Senator John Kennedy (R-18th) sponsored SB 301 in the Senate.²⁴ SB 301 was placed in the Senate Hopper on March 28, 2017.²⁵ The Senate completed a first read of the bill on January 9, 2018, and

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Lieutenant Governor Casey Cagle (R) committed the bill to the Senate Committee on Judiciary.²⁶ On February 8, 2018, the Committee favorably reported the bill by Committee substitute.²⁷

The Committee substitute included most of the original bill language, merely removing a few statutory cross-references to the federal code and cleaning up language that did not change the bill's substance.²⁸ Because SB 301's "Uniform Power of Attorney Act" from the 2016-2017 legislative session was voted on, passed, and signed into law on May 8, 2017, the Committee ensured that SB 301 was consistent with the last session's bill when it came into effect.²⁹ Additionally, the Committee made the changes to ensure uniform definitions between SB 301 and Titles 10, 29, and 53 of the Georgia Code.³⁰

The Senate read the bill for the second time on February 12, 2018, and for a third time on February 20, 2018.³¹ The Senate did not offer any floor amendments to the bill during the second and third reading.³² After the third reading on February 20, 2018, the Senate voted and passed the Committee substitute of SB 301, by a vote of 54 to 0.³³

Consideration and Passage by the House

Representative Barry Fleming (R-121st) sponsored SB 301 in the House.³⁴ The House read the bill for the first time on February 21, 2018.³⁵ Speaker of the House, Representative David Ralston (R-7th), committed the bill to the House Judiciary Committee.³⁶ After the second reading in the House on February 22, 2018, the Committee

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reported favorably on the bill.³⁷ The Committee did not offer any amendments during or after the second reading.³⁸ On March 19, 2018, the House read SB 301 for a third time, passed SB 301 by a vote of 162 to 2.³⁹ The bill's sponsor, Representative Fleming, transmitted the bill back to the Senate, and the Senate sent SB 301 to Governor Nathan Deal (R) on April 5, 2018.⁴⁰ Governor Deal signed the bill into law on May 8, 2018, and the bill became effective on July 1, 2018.⁴¹

The Act

The Act amends the following portions of the Official Code of Georgia Annotated: Title 53, relating to wills, trusts, and administration of estates; Chapter 6B of Title 10, relating to Georgia's rules for Power of Attorney; Article 2 of Chapter 9 of Title 15, relating to the duties of state probate courts; and Article 2 of Chapter 12 of Title 53, relating to the "Uniform Power of Attorney Act."⁴² The overall purpose of the Act is to extend fiduciary powers to include digital assets along with tangible assets and to provide custodians authority over fiduciaries' access to digital assets.⁴³

Section 1

Section 1 of the Act, which amends Chapter 13 of Title 53 of the Official Code of Georgia Annotated, is split into four articles.

Article 1 relates to the definitions, incorporating definitions from other Code sections while providing new definitions for Act-specific terms, for example "digital asset."⁴⁴ The definitions section also refers to definition sections throughout the...