In Virginia, after you die, your personal representative has some authority to access some of your digital assets. This will help with the job of wrapping up your estate, but it could also allow your personal representative to get into accounts that you might prefer to keep private.
In 2015, Virginia lawmakers a considered two bills that addressed digital assets. One – based on the Uniform Fiduciary Access to Digital Assets Act (UFADAA) -- which gives personal representatives very broad access to digital assets. And another -- the Privacy Expectations Afterlife Choices Act – which is much more restrictive. The more restrictive law passed, but it still provides a way for personal representatives to access personal assets when needed. Virginia also allows the personal representatives of a deceased minor (usually the parents) broad access to that child’s digital accounts and files.
“Digital assets” are any digital record that you own or have control over. This includes email accounts, websites, social media accounts, financial accounts, digital files (music, photos, movies), apps, frequent flyer rewards, or any other online or digital account or file. Your access to these accounts or files is usually limited by the “terms of service” (TOS) that you agree to when creating an account or buying or licensing a product online. TOS agreements often state that 1) you are the only person who can use the account, and 2) the company has the right to terminate the account when you die. Terms like these could make it difficult or impossible for your personal representative to access your digital assets after you die.
Learn more about What Are Digital Assets?
In Virginia – like all states -- what happens to your digital assets really depends on whether you’ve made a plan. However -- unlike many states -- Virginia law does give your personal representative some authority only over digital assets after your death.
To gain access to your digital assets, your personal representative will need to get a court order by showing (or swearing) that getting access to the account or file is in the best interest of your estate. Access will be limited in scope to just what the personal representative needs to wrap up the estate. It will likely be a cumbersome and slow process, and technology companies will be resistant. So your personal representative is likely to have mixed results with this task.
If your personal representative cannot access your accounts or files to modify or delete them – perhaps because he or she can’t prove that they’re needed or because the company that manages them just won’t provide access – the accounts and files will continue to exist, remaining untouched until the company them terminates the account, at which point all data will be lost.
This uncertain access to your digital assets files is disconcerting because the way your personal representative wants to follow your wishes may not completely align with the court’s perception of wrapping up your estate. For example, if your spouse wants to access your Instagram account so that he or she can put all of your photos in a book for your child, the court may not see this as needed to “effectuate the purpose of the administration of estate” unless you left explicit instructions or permission for that project.
Read more about Why Your Personal Representative Needs Access to Your Digital Assets.
To counter this uncertainty, you can make a plan for your digital assets by leaving your personal representative information about accessing and dealing with your online accounts and digital files. That way, your representative will be able to access your accounts without having to ask for permission from the court.
The best way to control what happens to your digital assets after you die is to very clearly provide instructions for your personal representative. Leave a list of your accounts with usernames and passwords and explain what you want done with each one. You can leave this information in a letter to be found after you die. Just keep the letter in a secure place, make sure that your personal representative knows where to find it, and remember to keep it up to date.
Maybe you don’t want your personal representative going into your accounts after you die. That certainly seems like a reasonable request – if the accounts and files are private in life, shouldn’t they also be private in death?
To limit your personal representative’s access to your digital assets, you could leave clear instructions about which assets will be useful for wrapping up your affairs and which should remain untouched. This won’t work for everyone, and you probably have a gut feeling about whether or not your personal representative would follow your instructions.
When asking for privacy isn’t enough, you may be able to take steps to hide the assets that you don’t want to share. For example, if you don’t want your personal representative to access a journal you keep on your personal computer, you can protect it with a strong password that you don’t share. For digital assets hosted by a third party, you could reduce evidence of an account by using only public computers to access it. This suggestion to hide your private digital information has nothing to do with the law, it just reflects that you can take some practical steps to keep your personal representative from knowing about or accessing some digital assets.
Finally, you could see a lawyer to discuss creating a legal protection for your private digital assets. An attorney may be able to craft a provision for your will that explicitly prohibits your personal representative from accessing certain assets. Or the attorney could help you set up a trust that appoints a trusted person to guard the assets on your behalf.
(Virginia – Existing law, 2015 UFADAA died in committee, Modified PEAC passed.)