What happens to “digital assets” in Virginia when someone passes away?

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For many, the of development technology like Facebook, email, online banking / investment accounts, and similar “digital assets” raises the question – what happens to these type of accounts when the user dies?

Virginia’s Privacy Expectation Afterlife and Choices Act

The Virginia Privacy Expectation Afterlife and Choices act was signed into law March 26, 2015. This law can be found in Virginia Code Section 64.2-109 through Section 64.2-115. The law sets forth the conditions in which the “personal representative” (aka executor) of a person’s estate can access digital information and accounts owned by a decedent (person who passed away).

Executor’s Right to Obtain Records

It provides your executor with the right to obtain a court order requiring “a provider to disclose to the personal representative of such estate a user’s records for the 18-month period prior to the date of death, but not the contents of the user’s electronic communications or stored contents… .” It is important to note, however, that the request to access this information must not be “in conflict with the will” of the decedent. Further, the information requested must “effectuate the purpose of the administration of the estate.” In addition, the account must not be held jointly with any other person, and if it is – the other account holder must consent to the access.

Decedents can choose to exclude access to their online accounts

Another important provisions of the law is that, during his or her lifetime, a decedent can take steps to keep online account information from being disclosed. Virginia Code Section 64.2-112 provides that providers may not be required to provide information if the :

(i) expressed an intent not to disclose the records or content of the account through an account setting within the product or service,

(ii) made an election with a service provider not to disclose the contents of the user’s account, or

(iii) deleted the records or contents during the user’s lifetime.

Access to Information Does Not Equate to Full Use of the Accounts

Finally, while it may be possible for an executor or administrator to access information contained in online accounts, Virginia Code Section 64.2-114 makes “use” of the decedent’s account prohibited. Specifically, “transmitting electronic communications from, posting content to…or mak[ing] other used of the deceased user’s account” is not allowed.