Virginia’s New Privacy Expectation Afterlife and Choices Act Protects Digital Assets

Picture from Huffington Post.

Kathleen’s sister, Marie, was very tech savvy and enjoyed all that social media has to offer. She tweeted every day about books she was reading and news stories of interest, posted quilting pictures and photos of her grandchildren on Pinterest, Facebook, and Instagram, and kept up with friends and former colleagues on LinkedIn. She also did all of her banking online, and paid most of her bills through online bill pay. When she passed away suddenly, Kathleen, who was named as her sister’s executor (or personal representative), was concerned that she wouldn’t have access to the digital assets that had both sentimental and monetary value for her sister.

In the past, when a person died, access to a digital service officially died with them. Even giving your password to your spouse or a trusted loved one is forbidden under Facebook’s terms of service. In fact, in 2004, Yahoo famously denied access to a US marine’s e-mail account to his family after the marine was killed in action in Iraq. Luckily, all of this has changed in Virginia with a new law permitting limited access to a deceased loved one’s online accounts.

The Privacy Expectation Afterlife and Choices Act, which became effective in Virginia on July 1, 2015, aims to assure that a person’s electronic footprint remains off-limits after death — even to his or her close kin — except under very strictly controlled circumstances. The legislation gives the personal representative of an estate the power to access a decedent’s online accounts and information in certain circumstances, with a judicial order. The following is a summary of the law’s key provisions:

  • Limited access is permitted: Section 64.2-111(A) allows a Personal Representative limited access to electronic records.  The access is limited to the eighteen months preceding death and does not include the right to electronic communication and stored contents.  Records older than eighteen months can be obtained under Section 64.2-111(C), if a court concludes they are necessary to settle an estate.
  • Permission must have been granted in the estate planning documents: Access to stored content is provided under Section 64.2-111(B), as long as the decedent’s Will gave consent for the Personal Representative to access the contents of his or her online accounts.  
  • Privacy of joint users is protected: Section 64.2-113 protects the data of a joint user on the account from access by a personal representative of the decedent. 
  • Personal representative cannot send email/post content using deceased person’s account: Section 64.2-114 forbids a Personal Representative from using a decedent’s electronic account to send email, post content, or for other uses.

Why was the law passed?

The Virginia Legislature passed the Privacy Expectation Afterlife and Choices Act to address two concerns.First, the prevalence of online bank and brokerage statements has made the Personal Representative’s job of finding and accounting for estate assets increasingly difficult.Also, the Virginia Senate and the information technology lobby wanted to protect the privacy of decedents, which is why the access is limited to the person’s Personal Representative and why consent and opt-out provisions were included in the law.

How can you grant digital access to a personal representative?

If you want your personal representative to have access to your content after you die, be sure that your Will expressly grants that authority; please note that if our firm did your Will after August 1, 2012, the necessary language is already in there.Should you want your service providers to keep your data closed, make sure your privacy settings are properly set.

How can you get your digital assets prepared?:

  • Identify and inventory: Make a list of your online accounts, memberships, and subscriptions.
  • Identify the person best suited to take control of your digital assets following death: You should consider naming a special Digital Executor in your Will.  For instance, for elderly couples, you might name someone other than your spouse – such as an adult child who is technologically able to handle these matters.
  • Provide access: The obvious issue with a hard copy is choosing a secure place to store it. Therefore, a password-protected Excel spreadsheet is a good starting point, as long as your trustee has access to the document when it’s needed. Online services for storing passwords include  Keepass, Lastpass,  Assetlock, PasswordBox, and SecureSafe.
  • Update your estate plan. Your estate plan should provide clear instructions regarding your digital assets. If someone inherits your computer, does he/she receive all of your files, online music, digital photos, and loaded software?  If you have a social network site where you communicate regularly, how do you want your illness or death to be communicated? Do you want your Facebook page to be shut down or do you want a memorial page created in your honor? If you blog regularly, do you want a goodbye post to be displayed? Do you want your letters and e-mails deleted? Finally, if you have digital photos, should they should be copied and distributed and to whom?  Specifically addressing these issues is imperative for today’s generation.

While states are slowly taking steps to define the legal standing of a digital executor, the burden remains on each of us to inventory our digital assets and ensure access for a smooth transition. Otherwise we risk losing these assets forever. For more details on digital assets and laws in other states, please read our blog post, What Happens to Your Online Data After You Are Gone?

Protect your Digital and Traditional Assets

Now is a good time to start planning for your digital assets AND your traditional assets. Call us today to make an appointment for a consultation:

Fairfax Estate Planning: 703-691-1888
Fredericksburg Estate Planning: 540-479-1435
Rockville Estate Planning: 301- 519-804
DC Estate Planning: 202-587-2797

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About Evan H Farr, CELA, CAP

Evan H. Farr is a 4-time Best-Selling author in the field of Elder Law and Estate Planning. In addition to being one of approximately 500 Certified Elder Law Attorneys in the Country, Evan is one of approximately 100 members of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys and is a Charter Member of the Academy of Special Needs Planners.

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