Virginia Uniform Fiduciary Access to Digital Assets Act
Virginia has enacted the ‘Uniform Fiduciary Access to Digital Assets Act.’ The Act allows a user to use an online tool or to direct in a will, trust, power of attorney or other record disclosure the release of all, none or some of the users digital assets in the possession of a custodian to a designated recipient.
The Act applies to a fiduciary acting under a will or power of attorney, a personal representative acting for a decedent, a guardianship proceeding, or a trustee under a trust so long as the instrument or proceeding was created, executed or commenced before, on or after July 1, 2017. The act also applies to a custodian who carries, maintains, processes, receives or stores the digital assets of a user so long as the user resides or resided in Virginia at the time of the user’s death.
When disclosing the assets of the user the custodian may grant full access to the user’s account, grant partial access to the account sufficient for the fiduciary or designated recipient to accomplish the tasks with which he or she is charged, or provide a copy of the digital asset that the user could have accessed on the date of request. A reasonable administrative fee may be charged by the custodian for the cost of disclosing such digital assets.
Where a deceased user has consented to disclosure, or a court directs disclosure, the custodian must provide the digital assets upon receipt of the following: a written request for disclosure, a certified copy of the death certificate, a certified copy of the letter of appointment, and unless the user provided direction using an online tool, a copy of the instrument evidencing the users consent to disclose.
Likewise, a party acting under a power of attorney, a trustee of a trust, or a conservator may obtain the digital assets of a user by providing the custodian with proper documentation as outlined in the Act that shows the consent of the user and the authority of the party requesting the information.
The custodian has 60 days from receipt of the required information to comply with the request to disclose digital assets or terminate an account. Failure of the custodian to comply will allow the fiduciary or designated recipient to apply for a court order directing compliance.
The Uniform Fiduciary Access to Digital Assets Act becomes effective July 1, 2017.
Adam Faria, JD, is a regulatory compliance consultant with CLA. He is a graduate of Northeastern University and earned his juris doctor at Suffolk University Law School. He is admitted to the bar in Massachusetts and New Hampshire.
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