(a) If a marital deduction is allowed for all or part of a trust whose assets consist substantially of property that does not provide the spouse with sufficient income from or use of the trust assets, and if the amounts that the trustee transfers from principal to income under W.S. 2-3-804 and distributes to the spouse from principal pursuant to the terms of the trust are insufficient to provide the spouse with the beneficial enjoyment required to obtain the marital deduction, the spouse may require the trustee to make property productive of income, convert property within a reasonable time or exercise the power conferred by W.S. 2-3-804(a). The trustee may decide which action or combination of actions to take.
(b) In cases not governed by subsection (a) of this section, proceeds from the sale or other disposition of an asset are principal without regard to the amount of income the asset produces during any accounting period.
(a) In this section, "derivative" means a contract or financial instrument or a combination of contracts and financial instruments which gives a trust the right or obligation to participate in some or all changes in the price of a tangible or intangible asset or group of assets, or changes in a rate, an index of prices or rates or other market indicator for an asset or a group of assets.
(b) To the extent that a trustee does not account under W.S. 2-3-813 for transactions in derivatives, the trustee shall allocate to principal receipts from and disbursements made in connection with those transactions.
(c) If a trustee grants an option to buy property from the trust, whether or not the trust owns the property when the option is granted, grants an option that permits another person to sell property to the trust, or acquires an option to buy property for the trust or an option to sell an asset owned by the trust, and the trustee or other owner of the asset is required to deliver the asset if the option is exercised, an amount received for granting the option must be allocated to principal. An amount paid to acquire the option must be paid from principal. A gain or loss realized upon the exercise of an option, including an option granted to a settlor of the trust for services rendered, must be allocated to principal.
(a) In this section, "asset-backed security" means an asset whose value is based upon the right it gives the owner to receive distributions from the proceeds of financial assets that provide collateral for the security. The term includes an asset that gives the owner the right to receive from the collateral financial assets only the interest or other current return or only the proceeds other than interest or current return. The term does not include an asset to which W.S. 2-3-811 or 2-3-819 applies.
(b) If a trust receives a payment from interest or other current return and from other proceeds of the collateral financial assets, the trustee shall allocate to income the portion of the payment which the payer identifies as being from interest or other current return and shall allocate the balance of the payment to principal.
(c) If a trust receives one (1) or more payments in exchange for the trust's entire interest in an asset-backed security in one (1) accounting period, the trustee shall allocate the payments to principal. If a payment is one (1) of a series of payments that will result in the liquidation of the trust's interest in the security over more than one (1) accounting period, the trustee shall allocate ten percent (10%) of the payment to income and the balance to principal.
(a) A trustee shall make the following disbursements from income to the extent that they are not disbursements to which W.S. 2-3-806(a)(ii)(B) or (C) applies:
(i) Interest, except interest on taxes as provided in W.S. 2-3-827(a)(vi);
(ii) Ordinary repairs and maintenance of real estate;
(iii) Real estate taxes and other regularly recurring taxes assessed against principal; and
(iv) Recurring premiums on insurance covering the loss of a principal asset or the loss of income from or use of the asset.
(a) A trustee shall make the following disbursements from principal:
(i) Extraordinary expenses incurred in connection with the administration, management or preservation of trust property and the distribution of income;
(ii) Extraordinary repairs;
(iii) Repealed by Laws 2015, ch. 79, § 3.
(iv) Expenses in connection with accountings and judicial or other proceedings to construe, modify or reform the trust or to protect the trust or its property;
(v) Premiums paid on a policy of insurance not described in W.S. 2-3-826(a)(iv) of which the trust is the owner and beneficiary;
(vi) Estate, inheritance and other transfer taxes, including penalties, apportioned to the trust; and
(vii) Disbursements related to environmental matters, including reclamation, assessing environmental conditions, remedying and removing environmental contamination, monitoring remedial activities and the release of substances, preventing future releases of substances, collecting amounts from persons liable or potentially liable for the costs of those activities, penalties imposed under environmental laws or regulations and other payments made to comply with those laws or regulations, statutory or common law claims by third parties and defending claims based on environmental matters.
(b) If a principal asset is encumbered with an obligation that requires income from that asset to be paid directly to the creditor, the trustee shall transfer from principal to income an amount equal to the income paid to the creditor in reduction of the principal balance of the obligation.
2-3-828. Transfers from income to principal for depreciation.
(a) In this section, "depreciation" means a reduction in value due to wear, tear, decay, corrosion or gradual obsolescence of a fixed asset having a useful life of more than one (1) year and the purchase cost or value of such fixed asset is more than that amount provided by section 179 of the United States Internal Revenue Code or subsequent amendment to the Internal Revenue Code.
(b) A trustee may transfer to principal a reasonable amount of the net cash receipts from a principal asset that is subject to depreciation, but may not transfer any amount for depreciation:
(i) Of that portion of real property used or available for use by a beneficiary as a residence or of tangible personal property held or made available for the personal use or enjoyment of a beneficiary;
(ii) During the administration of a decedent's estate; or
(iii) Under this section if the trustee is accounting under W.S. 2-3-813 for the business or activity in which the asset is used.
(c) An amount transferred to principal need not be held as a separate fund.
2-3-829. Transfers from income to reimburse principal.
(a) If a trustee makes or expects to make a principal disbursement described in this section, the trustee may transfer an appropriate amount from income to principal in one (1) or more accounting periods to reimburse principal or to provide a reserve for future principal disbursements.
(b) Principal disbursements to which subsection (a) of this section applies include the following, but only to the extent that the trustee has not been and does not expect to be reimbursed by a third party:
(i) An amount chargeable to income but paid from principal because it is unusually large, including extraordinary repairs;
(ii) A capital improvement to a principal asset, whether in the form of changes to an existing asset or the construction of a new asset, including special assessments;
(iii) Disbursements made to prepare property for rental, including tenant allowances, leasehold improvements and broker's commissions;
(iv) Periodic payments on an obligation secured by a principal asset to the extent that the amount transferred from income to principal for depreciation is less than the periodic payments; and
(v) Disbursements described in W.S. 2-3-827(a)(vii).
(c) If the asset whose ownership gives rise to the disbursements becomes subject to a successive income interest after an income interest ends, a trustee may continue to transfer amounts from income to principal as provided in subsection (a) of this section.
(a) A tax required to be paid by a trustee based on receipts allocated to income must be paid from income.
(b) A tax required to be paid by a trustee based on receipts allocated to principal must be paid from principal, even if the tax is called an income tax by the taxing authority.
(c) A tax required to be paid by a trustee on the trust's share of an entity's taxable income must be paid proportionately:
(i) From income to the extent that receipts from the entity are allocated to income; and
(ii) From principal to the extent that:
(A) Receipts from the entity are allocated to principal; and
(B) The trust's share of the entity's taxable income exceeds the total receipts described in paragraph (i) and subparagraph (ii)(A) of this subsection.
(d) For purposes of this section, receipts allocated to principal or income must be reduced by the amount distributed to a beneficiary from principal or income for which the trust receives a deduction in calculating the tax.
2-3-831. Adjustments between principal and income.
(a) Subject to W.S. 2-3-826 and 2-3-827, a trustee may, in the discretion of the trustee, allocate to income, principal or partly to each, the ordinary expenses incurred in connection with the administration, management or preservation of trust property and the distribution of income including the compensation of the trustee and of agents hired by the trustee including investment advisors, custodians or income tax preparation services.
(i) Repealed by Laws 2015, ch. 79, § 3.
(ii) Repealed by Laws 2015, ch. 79, § 3.
(iii) Repealed by Laws 2015, ch. 79, § 3.
(b) If the amount of an estate tax marital deduction or charitable contribution deduction is reduced because a fiduciary deducts an amount paid from principal for income tax purposes instead of deducting it for estate tax purposes, and as a result estate taxes paid from principal are increased and income taxes paid by an estate, trust or beneficiary are decreased, each estate, trust or beneficiary that benefits from the decrease in income tax shall reimburse the principal from which the increase in estate tax is paid. The total reimbursement must equal the increase in the estate tax to the extent that the principal used to pay the increase would have qualified for a marital deduction or charitable contribution deduction but for the payment. The proportionate share of the reimbursement for each estate, trust or beneficiary whose income taxes are reduced must be the same as its proportionate share of the total decrease in income tax. An estate or trust shall reimburse principal from income.
2-3-832. Judicial control of discretionary powers.
(a) A court shall not change a fiduciary's decision to exercise or not to exercise a discretionary power conferred by this act unless it determines that the decision was an abuse of the fiduciary's discretion. A court shall not determine that a fiduciary abused its discretion merely because the court would have exercised the discretion in a different manner or would not have exercised the discretion.
(b) The decisions to which subsection (a) of this section applies include:
(i) A determination under W.S. 2-3-804(a) of whether and to what extent an amount should be transferred from principal to income or from income to principal;
(ii) A determination of the factors that are relevant to the trust and its beneficiaries, the extent to which they are relevant, and the weight, if any, to be given to the relevant factors, in deciding whether and to what extent to exercise the power conferred by W.S. 2-3-804(a).
(c) If a court determines that a fiduciary has abused its discretion, the remedy is to restore the income and remainder beneficiaries to the positions they would have occupied if the fiduciary had not abused its discretion, according to the following rules:
(i) To the extent that the abuse of discretion has resulted in no distribution to a beneficiary or a distribution that is too small, the court shall require the fiduciary to distribute from the trust to the beneficiary an amount that the court determines will restore the beneficiary, in whole or in part, to his appropriate position;
(ii) To the extent that the abuse of discretion has resulted in a distribution to a beneficiary that is too large, the court shall restore the beneficiaries, the trust, or both, in whole or in part, to their appropriate positions by requiring the fiduciary to withhold an amount from one (1) or more future distributions to the beneficiary who received the distribution that was too large or requiring that beneficiary to return some or all of the distribution to the trust;
(iii) To the extent that the court is unable, after applying paragraphs (i) and (ii) of this subsection, to restore the beneficiaries, the trust, or both, to the positions they would have occupied if the fiduciary had not abused its discretion, the court may require the fiduciary to pay an appropriate amount from its own funds to one (1) or more of the beneficiaries or the trust or both.
(d) Upon a petition by the fiduciary, the court having jurisdiction over the trust or estate shall determine whether a proposed exercise or nonexercise by the fiduciary of a discretionary power conferred by this act will result in an abuse of the fiduciary's discretion. If the petition describes the proposed exercise or nonexercise of the power and contains sufficient information to inform the beneficiaries of the reasons for the proposal, the facts upon which the fiduciary relies, and an explanation of how the income and remainder beneficiaries will be affected by the proposed exercise or nonexercise of the power, a beneficiary who challenges the proposed exercise or nonexercise has the burden of establishing that it will result in an abuse of discretion.
2-3-833. Uniformity of application and construction.
In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
2-3-834. Application of act to trusts and estates; principal place of administration.
This act applies to every trust that has its principal place of administration in Wyoming and to every decedent's estate probated in Wyoming except where the trust or will expressly applies the principal and income act of another state or as otherwise expressly provided in this act.
2-3-835. Trustee discretion to include capital gains in income.
(a) To the extent a trustee is given the power to make mandatory or discretionary distributions of income, the trustee may, on an annual basis, include realized capital gains in trust income and in determining section 643(a) of the Internal Revenue Code distributable net income, if the allocation is reasonable and impartial.
(b) To the extent a trustee is given the power to make mandatory or discretionary distributions of principal, the trustee may, on an annual basis, include realized capital gains in determining Section 643(a) Internal Revenue Code distributable net income, if the allocation is reasonable and impartial.
(a) As used in this act:
(i) "Beneficiary" means a person as defined in W.S. 2-3-802(a)(ii);
(ii) "Disinterested person" means a person who is not a "related or subordinate party" as defined in § 672(c) of the Internal Revenue Code, with respect to the person then acting as trustee of the trust and excludes the settlor of the trust and any interested trustee;
(iii) "Income trust" means a trust, created by either an inter vivos or a testamentary instrument, which directs or permits the trustee to distribute the net income of the trust to one (1) or more persons, either in fixed proportions or in amounts or proportions determined by the trustee. Notwithstanding the foregoing, no trust that otherwise is an "income trust" shall qualify under this act, if it may be subject to taxation under Internal Revenue Code §§ 2001 or 2501, until the expiration of the period for filing the return therefore, including extensions;
(iv) "Interested distributee" means a person to whom distributions of income or principal can currently be made who has the power to remove the existing trustee and designate as successor a person who may be a "related or subordinate party", as defined in Internal Revenue Code § 672(c) with respect to the distributee;
(v) "Interested trustee" means:
(A) An individual trustee to whom the net income or principal of the trust can currently be distributed or would be distributed if the trust were then to terminate and be distributed;
(B) Any trustee who may be removed and replaced by an interested distributee; or
(C) An individual trustee whose legal obligation to support a beneficiary may be satisfied by distributions of income and principal of the trust.
(vi) "Total return unitrust" means an income trust which has been created or converted under and meets the provisions of this act;
(vii) "Trustee" means all persons acting as trustee of the trust, except where expressly noted otherwise, whether acting in their discretion or on the direction of one (1) or more persons acting in a fiduciary capacity;
(viii) "Settlor" means a person as defined in W.S. 4-10-103(a)(xviii);
(ix) "Unitrust amount" means an amount computed as a percentage of the fair market value of the trust;
(x) "This act" means W.S. 2-3-901 through 2-3-917.
2-3-903. Unitrust election by trustee; requirements to make unitrust election.
(a) A trustee, other than an interested trustee, or where two (2) or more persons are acting as trustees, a majority of the trustees who are not interested trustees may, in its sole discretion and without the approval of the district court:
(i) Elect to release the power to adjust described in W.S. 2-3-804 and to convert an income trust to a total return unitrust;
(ii) Reconvert a total return unitrust to an income trust and reinstate the power to adjust described in W.S. 2-3-804; or
(iii) Change the percentage used to calculate the unitrust amount or the method used to determine the fair market value of the trust if the following requirements are completed:
(A) The trustee adopts a written policy for the trust providing:
(I) In the case of a trust being administered as an income trust, that future distributions from the trust will be unitrust amounts rather than net income;
(II) In the case of a trust being administered as a total return unitrust, that future distributions from the trust will be net income rather than unitrust amounts; or
(III) That the percentage used to calculate the unitrust amount or the method used to determine the fair market value of the trust will be changed as stated in the policy.
(b) The trustee shall mail notice of the proposed action to all beneficiaries who are receiving, or are entitled to receive, income under the trust or to receive a distribution of principal if the trust were terminated at the time the notice is given assuming nonexercise of all powers of appointment.
(c) Notice of proposed action need not be given to any person who consents in writing to the proposed action. The consent may be executed at any time before or after the proposed action is taken.
(d) The written notice of its intention to take action shall include the following:
(i) The name and mailing address of the trustee;
(ii) The name and telephone number of a person who may be contacted for additional information;
(iii) A description of the action proposed to be taken and an explanation of the reasons for the action;
(iv) A copy of the trustee's written policy discussed in subparagraph (a)(iii)(A) of this section;
(v) The time within which objections to the proposed action can be made, which shall be at least thirty (30) days from the mailing of the notice of proposed action; and
(vi) The date on or after which the proposed action may be taken or is effective.
(e) A beneficiary may object to the proposed action by mailing a written objection to the trustee stating the objection and the basis or reason for the objection at the address stated in the notice of proposed action within the time period specified in the notice of proposed action.
(f) If the trustee receives a written objection stating the basis or reason for the objection within the applicable period, either the trustee or a beneficiary may petition the court to have the proposed action taken as proposed, taken with modifications, or denied.
(g) A beneficiary who has not objected is not estopped from opposing the proposed action in the proceeding.
(h) If the trustee decides not to implement the proposed action, the trustee shall notify the beneficiaries of the decision not to take the action and the reasons for the decision, and the trustee's decision not to implement the proposed action shall not itself give rise to liability to any current or future beneficiary.
2-3-904. Unitrust election where there is no trustee other
than an interested trustee; requirements to make unitrust election.
(a) If there is no trustee of the trust other than an interested trustee, the interested trustee, or where two (2) or more persons are acting as trustees and are interested trustees, a majority of the interested trustees, in its sole discretion and without the approval of the district court, may:
(i) Elect to release the power to adjust described in W.S. 2-3-804 and to convert an income trust to a total return unitrust;
(ii) Reconvert a total return unitrust to an income trust and reinstate the power to adjust described in W.S. 2-3-804; or
(iii) Change the percentage used to calculate the unitrust amount or the method used to determine the fair market value of the trust if the requirements of W.S. 2-3-903(a) through (f) are completed and the trustee appoints a disinterested person who, in its sole discretion but acting in a fiduciary capacity, determines for the trustee:
(A) The percentage to be used to calculate the unitrust amount;
(B) The method to be used in determining the fair market value of the trust; and
(C) Which assets, if any are to be excluded in determining the unitrust amount.
2-3-905. Unitrust election by beneficiary; ability to request trustee action.
(a) A beneficiary, who is receiving, or is entitled to receive, income under the trust or to receive a distribution of principal if the trust were terminated, may:
(i) Submit to the trustee a written request to convert an income trust to a total return unitrust;
(ii) Reconvert a total return unitrust to an income trust; or
(iii) Change the percentage used to calculate the unitrust amount pursuant to W.S. 2-3-904.
(b) If the trustee declines or fails to act within six (6) months of receipt of the written request, the beneficiary may petition the district court to order the conversion or adjustment.
A settlor may create a trust instrument with terms providing that the trust shall be administered as a total return unitrust under this act. A settlor may also create a trust instrument with terms providing that the trust may be administered as either an income trust or as a total return unitrust under this act in the discretion of the trustee or a trust protector appointed in the trust instrument.
(a) The fair market value of a trust subject to this act shall be determined, at least annually, using a valuation date or dates or averages of valuation dates as are deemed appropriate except that:
(i) The trustee shall not include in the fair market value the value of any residential property or any tangible personal property that the income beneficiary has the right to occupy or use;
(ii) The trustee shall not limit or restrict any right of the beneficiary to use the excluded property in accordance with the governing instrument; and
(iii) Where the terms of the trust do not provide contrary direction, the trustee shall include in the fair market value the value of:
(A) The portion of any private or commercial annuity from which the trustee is receiving distributions as a designated beneficiary of the annuity; and
(B) The portion of any individual retirement account and pension, profit-sharing, stock bonus or stock ownership plan retirement account from which the trustee is receiving distributions as a designated beneficiary of the account.
(b) Assets for which a fair market value cannot be readily ascertained shall be valued using valuation methods as are deemed reasonable and appropriate as determined in the sole discretion of the trustee. The assets may be excluded from valuation in the sole discretion of the trustee, provided all income received with respect to the assets is distributed to the extent distributable in accordance with the terms of the governing instrument.
The percentage to be used in determining the unitrust amount shall be a reasonable current return from the trust, in any event not less than three percent (3%) nor more than five percent (5%), taking into account the intentions of the settlor of the trust as expressed in the governing instrument, the needs of the beneficiaries, general economic conditions, projected current earnings and appreciation for the trust, and projected inflation and its impact on the trust.
(a) Following the conversion of an income trust to a total return unitrust or upon creation of a total return unitrust by a settlor, the trustee:
(i) Shall treat the unitrust amount as net income of the trust for purposes of determining the amount available, from time to time, for distribution from the trust; and
(ii) May allocate to trust income for each taxable year of the trust, or portion thereof:
(A) Net short-term capital gain described in Internal Revenue Code § 1222(5) for the year, or portion thereof, but only to the extent that the amount so allocated together with all other amounts allocated to trust income for the year, or portion thereof does not exceed the unitrust amount for the year, a portion thereof; and
(B) Net long-term capital gain described in Internal Revenue Code § 1222(7) for the year, or portion thereof, but only to the extent that the amount so allocated together with all other amounts, including amounts described in subparagraph (A) of this paragraph, allocated to trust income for the year, or portion thereof, does not exceed the unitrust amount for the year, or portion thereof.
(a) In administering a total return unitrust, the trustee may, in its sole discretion, but subject to the provisions of the governing instrument, determine:
(i) The effective date of the conversion;
(ii) The timing of distributions, including provisions for prorating a distribution for a short year in which a beneficiary's right to payments commences or ceases;
(iii) Whether distributions are to be made in cash or in kind or partly in cash and partly in kind;
(iv) If the trust is reconverted to an income trust, the effective date of the reconversion; and
(v) Other administrative issues as may be necessary or appropriate to carry out the purposes of this act.
2-3-911. Treatment of underpayments or overpayments.
In the event of an underpayment to a beneficiary, the trustee shall pay to a beneficiary within a reasonable time, and in the event of an overpayment to a beneficiary, the trustee shall recover from the beneficiary either by repayment by the beneficiary or by withholding from future distributions to the beneficiary, an amount equal to the difference between the amount properly payable and the amount actually paid.
2-3-912. Effect of conversion on governing instrument.
Conversion to a total return unitrust under the provisions of this act shall not affect any other provision of the governing instrument, if any, regarding distributions of principal.
(a) This act shall be construed as pertaining to the administration of a trust and shall be available to any trust that is administered in Wyoming under Wyoming law unless:
(i) The governing instrument reflects an intention that the beneficiary or beneficiaries are to receive an amount other than a reasonable current return from the trust;
(ii) The trust is a trust described in Internal Revenue Code §§ 170(f)(2)(B), 664(d), 2702(a)(3) or 2702(b); or
(iii) The governing instrument expressly prohibits use of this act by specific reference to this act.
Any trustee or disinterested person who in good faith takes or fails to take any action under this act shall not be liable to any person affected by the action or inaction, regardless of whether the person received written notice as provided in this act and regardless of whether the person was under a legal disability at the time of the delivery of the notice. The person's exclusive remedy shall be to obtain an order of the district court directing the trustee to convert an income trust to a total return unitrust, to reconvert from a total return unitrust to an income trust or to change the percentage used to calculate the unitrust amount.
2-3-915. Judicial control of discretionary powers.
(a) A court shall not change a trustee's decision to exercise or not to exercise a discretionary power conferred by this act unless it determines that the decision was an abuse of the trustee's discretion. A court shall not determine that a trustee abused its discretion merely because the court would have exercised the discretion in a different manner or would not have exercised the discretion.
(b) Where a beneficiary elects to challenge an action or nonaction by a trustee or disinterested party under the powers and authority granted in the party under this act, the beneficiary has the burden of establishing, by a preponderance of the evidence, that the actions or nonactions by a trustee or a disinterested party abused the trustee's or the party's discretion. A beneficiary who fails to state a basis or reason for an objection or fails to prove by a preponderance of the evidence the proposed action should be taken or should not be taken shall be liable to all other beneficiaries for damages and costs associated with the objection.
An action shall not be taken under W.S. 2-3-903, 2-3-904 or 2-3-905 more frequently than every two (2) years, unless the district court orders otherwise.
This act applies to every trust or decedent's estate existing on July 1, 2007 or created thereafter except as otherwise expressly provided in the will or terms of the trust or in this act.
(a) As used in this act:
(i) "Account" means an arrangement under a terms of service agreement in which a custodian carries, maintains, processes, receives or stores a digital asset of a user or provides goods or services to a user;
(ii) "Agent" means an attorney in fact granted authority under a power of attorney;
(iii) "Carries" means engages in the transmission of an electronic communication;
(iv) "Catalogue of electronic communications" means information that identifies a person with which a user has had an electronic communication, including the person's electronic address, and the time and date of the communication;
(v) "Content of electronic communications" means information concerning the substance or meaning of an electronic communication that:
(A) Has been sent or received by a user;
(B) Is in electronic storage by a custodian providing an electronic communication service to the public or is carried or maintained by a custodian providing a remote computing service to the public; and
(C) Is not readily accessible to the public.
(vi) "Custodian" means a person that carries, maintains, processes, receives or stores a digital asset of a user through the internet as defined in W.S. 9-2-3219(a)(iii);
(vii) "Designated recipient" means a person chosen by a user using an online tool to administer digital assets of the user;
(viii) "Digital asset" means an electronic record in which a person has a right or interest. "Digital asset" does not include an underlying asset or liability unless the asset or liability is itself an electronic record;
(ix) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities;
(x) "Electronic communication" means an electronic communication as defined in section 2510 of title 18 of the United States Code, as amended;
(xi) "Electronic communication service" means a custodian that provides to a user the ability to send or receive an electronic communication;
(xii) "Fiduciary" means a personal representative, trustee, executor, administrator, guardian, agent, conservator or other person performing substantially these same functions. To be a fiduciary under this act a person must be authorized to act as a fiduciary with respect to the digital assets of a user or a user's estate. A fiduciary shall have those privileges, powers and obligations granted under this act which are not inconsistent with other privileges, powers or obligations imposed by this act on specific types of fiduciaries;
(xiii) "Information" means data, text, images, videos, sounds, codes, computer programs, software, databases or the like;
(xiv) "Online tool" means an electronic service provided by a custodian that allows a user, in an agreement distinct from a terms of service agreement between the custodian and the user, to provide directions for disclosure or nondisclosure of digital assets to a third person;
(xv) "Principal" means a person who grants authority to an agent in a power of attorney;
(xvi) "Record" means information that is inscribed on a tangible medium or stored in an electronic or other medium and is retrievable in perceivable form;
(xvii) "Remote computing service" means a custodian that provides to a user computer processing services or the storage of digital assets by means of an electronic communications system, as defined in section 2510 of title 18 of the United States Code, as amended;
(xviii) "Terms of service agreement" means an agreement that controls the relationship between a user and a custodian;
(xix) "User" means a person that has an account with a custodian;
(xx) "Ward" means a person for whom a conservator has been appointed, including a person for whom an application for the appointment of a conservator is pending;
(xxi) "This act" means W.S. 2-3-1001 through 2-3-1017.
(a) This act applies to:
(i) A fiduciary acting under a will, power of attorney or other authorization to act as a fiduciary with respect to the digital assets of a user entered or executed before, on or after July 1, 2016;
(ii) A personal representative acting for a decedent who died before, on or after July 1, 2016;
(iii) A conservatorship proceeding commenced before, on or after July 1, 2016; and
(iv) A trustee acting under a trust created before, on or after July 1, 2016.
(b) This act applies to a custodian of digital assets of a user who resides in the state or resided in the state at the time of the user's death.
(c) This act does not apply to digital assets of an employer used by an employee in the ordinary course of the employer's business.
2-3-1004. User direction for disclosure of digital assets.
(a) A user may use an online tool to direct a custodian to disclose or not to disclose to a designated recipient some or all of the user's digital assets, including the content of electronic communications sent or received by the user. If the online tool at all times allows a user to modify or delete a direction to a custodian to disclose some or all of the user's digital assets, the direction regarding disclosure overrides a contrary direction by the user in a will, trust, power of attorney or other like record.
(b) If a user has not used an online tool to direct a custodian under subsection (a) of this section or if a custodian has not provided an online tool, the user may direct in a will, trust, power of attorney or other like record the disclosure or nondisclosure to a fiduciary some or all of the user's digital assets, including the content of electronic communications sent or received by the user.
(c) A user's direction under subsection (a) or (b) of this section overrides a contrary provision in a terms of service agreement if the agreement did not require the user to act affirmatively and distinctly from the user's assent to the agreement.
(a) This act does not change or impair a right of a custodian or a user under a terms of service agreement to access and use digital assets of the user.
(b) This act does not give a fiduciary or designated recipient new or expanded rights other than those rights held by the user for whom, or for whose estate, the fiduciary or designated recipient acts or represents.
(c) A fiduciary's or designated recipient's access to digital assets may be modified or eliminated by a user, federal law or a terms of service agreement if the user has not provided direction under W.S. 2-3-1004.
2-3-1006. Procedure for disclosing digital assets.
(a) When disclosing digital assets of a user under this act, a custodian may:
(i) Grant a fiduciary or designated recipient full access to the user's account;
(ii) Grant a fiduciary or designated recipient partial access to the user's account sufficient to perform the tasks with which the fiduciary or designated recipient is charged; or
(iii) Provide a fiduciary or designated recipient a copy in a record of any digital asset that, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account.
(b) A custodian may assess a reasonable administrative fee for the cost of disclosing digital assets under this act.
(c) A custodian is not required to disclose under this act a digital asset deleted by a user.
(d) A custodian is not required to disclose under this act a user's digital assets if the user directs or a fiduciary requests a custodian to disclose some, but not all, of the user's digital assets and the segregation of the assets would impose an undue burden on the custodian. If a custodian finds that a direction or request imposes an undue burden, the custodian or fiduciary may seek an order from the circuit court or other court of competent jurisdiction to disclose:
(i) A subset of the user's digital assets limited by date to the fiduciary or designated recipient;
(ii) All of the user's digital assets to the fiduciary or designated recipient;
(iii) None of the user's digital assets to the fiduciary or designated recipient; or
(iv) All of the user's digital assets to the court for an in camera review.
2-3-1007. Disclosure of the content of electronic communications of a deceased user.
(a) A custodian shall disclose to a personal representative of the estate of a deceased user the content of electronic communications sent or received by the user if the user directed disclosure as specified in W.S. 2-3-1004 or a court directs disclosure of the content of electronic communications of the user and if the representative provides the custodian with the following:
(i) A request for disclosure in written or electronic form;
(ii) A certified copy of the death certificate of the user;
(iii) A certified copy of the court order appointing the personal representative;
(iv) Unless the user provided direction using an online tool, a copy of the user's will, trust, power of attorney or other like record evidencing the user's consent to disclosure of the content of electronic communications; and
(v) If requested by the custodian:
(A) A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the user's account;
(B) Evidence linking the account to the user; or
(C) A finding by a circuit court or other court of competent jurisdiction that:
(I) The user had a specific account with the custodian identifiable by the information specified in subparagraph (A) of this paragraph;
(II) Disclosure of the content of electronic communications of the user would not violate section 2701 et seq. of title 18 of the United States Code, as amended, or section 222 of title 47 of the United States Code, as amended, or other applicable law;
(III) Unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications as specified in W.S. 2-3-1004; or
(IV) Disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.
2-3-1008. Disclosure of other digital assets of a deceased user.
(a) Unless otherwise directed by a court order or a user as specified in W.S. 2-3-1004, a custodian shall disclose to the personal representative of the estate of a deceased user a catalogue of electronic communications sent or received by the user and digital assets of the user, other than the content of electronic communications, if the representative provides the custodian with the following:
(i) A request for disclosure in written or electronic form;
(ii) A certified copy of the death certificate of the user;
(iii) A certified copy of the court order appointing the personal representative; and
(iv) If requested by the custodian:
(A) A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the user's account;
(B) Evidence linking the account to the user;
(C) An affidavit stating that disclosure of the user's digital assets is reasonably necessary for administration of the estate; or
(D) A finding by a circuit court or other court of competent jurisdiction that:
(I) The user had a specific account with the custodian identifiable by the information specified in subparagraph (A) of this paragraph; or
(II) Disclosure of the user's digital assets is reasonably necessary for administration of the estate.
2-3-1009. Disclosure of content of electronic communications of a principal.
(a) To the extent a power of attorney expressly grants an agent authority over the content of electronic communications sent or received by a principal and unless otherwise directed by a court order or the principal as specified in W.S. 2-3-1004, a custodian shall disclose to the agent the content of electronic communications sent or received by the principal if the agent provides the custodian with the following:
(i) A request for disclosure in written or electronic form;
(ii) An original or copy of the power of attorney expressly granting the agent authority over the content of electronic communications of the principal;
(iii) A certification by the agent, under penalty of perjury, that the power of attorney is in effect; and
(iv) If requested by the custodian:
(A) A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the principal's account; or
(B) Evidence linking the account to the principal.
2-3-1010. Disclosure of other digital assets of a principal.
(a) Unless otherwise directed by a court order, a principal as specified in W.S. 2-3-1004 or a power of attorney, a custodian shall disclose to an agent a catalogue of electronic communications sent or received by the principal and digital assets of the principal, other than the content of electronic communications, if the agent provides the custodian with the following:
(i) A request for disclosure in written or electronic form;
(ii) An original or a copy of the power of attorney that gives the agent specific authority over digital assets of the principal or general authority to act on behalf of the principal;
(iii) A certification by the agent, under penalty of perjury, that the power of attorney is in effect; and
(iv) If requested by the custodian:
(A) A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the principal's account; or
(B) Evidence linking the account to the principal.