New Virginia law takes effect concerning digital assets

Virginia has a new law that makes it easier for fiduciaries to access digital assets of a deceased owner.

The issue of who controls the digital assets of somebody who has passed away has led to plenty of controversy in recent years. Digital assets, such as social media accounts, online financial accounts, and digital currencies, are an important component of many estate plans as they often have either significant monetary or sentimental value associated with them. However, access to those assets are often determined by the Terms of Service Agreements of the individual companies (the "custodians") that control access to them. Now, according to ETH News, Virginia has passed a law, effective July 1, 2017, that makes accessing and managing those assets easier for designated fiduciaries.

Access to digital assets

The new law, called the Uniform Fiduciary Access to Digital Assets Act, went into effect on July 1, 2017 and replaces the Privacy Expectation Afterlife and Choices Act. The new law allows fiduciaries, such as an executor, estate administrator, guardian, trustee, or agent under a power of attorney, to access the digital assets of an individual who is deceased or incapacitated.

The new law does not grant unrestricted access to digital assets to fiduciaries. While fiduciaries will be able to access domains, digital currencies, and computer files, they will be restricted in what electronic communications of the deceased they can access, such as emails, text messages, and social media messages. In order for the fiduciary to gain complete access to all digital assets, instructions must be included in a will granting that access. As Kiplinger points out, the new law is largely based on one that was adopted in California on January 1, 2017.

Creating a digital asset plan

While the new law makes accessing digital assets somewhat easier for the family and loved ones of a deceased person, it also highlights how serious the issue of digital estate planning really is. People should make sure their estate plan addresses not just who gets various digital assets, but also who gets access (i.e., the passwords) to them.

In order to make the handling of digital assets easier for a fiduciary, individuals should keep their login information in a secure place, such as an online vault, and leave instructions about how to access that vault with the executor. Relatedly, individuals should be careful about who they choose as their executor, trustee, or representative, especially since that person may have access to sensitive information and personal communications.

Estate planning help

To get help with any estate planning issue, including with digital assets, it is important to talk to an estate planning attorney as soon as possible. An experienced attorney can help clients craft an estate plan that is effective, enforceable, and which will leave the client's loved ones provided for after he or she passes on.