Virginia Code 64.2-129: Fiduciary duty and authority.
A. The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including:
Terms Used In Virginia Code 64.2-129
- Account: means an arrangement under a terms-of-service agreement in which a custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides goods or services to the user. See Virginia Code 64.2-116
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- Court: means the circuit court for the county or city having jurisdiction over the fiduciary in matters relating to the content of this article. See Virginia Code 64.2-116
- Custodian: means a person who carries, maintains, processes, receives, or stores a digital asset of a user. See Virginia Code 64.2-116
- Decedent: A deceased person.
- Designated recipient: means a person chosen by a user using an online tool to administer digital assets of the user. See Virginia Code 64.2-116
- Digital asset: means an electronic record in which an individual has a right or interest. See Virginia Code 64.2-116
- Electronic: means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. See Virginia Code 64.2-116
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Fiduciary: A trustee, executor, or administrator.
- Fiduciary: means an original, additional, or successor personal representative, conservator, guardian, agent, or trustee. See Virginia Code 64.2-116
- in writing: include any representation of words, letters, symbols, numbers, or figures, whether (i) printed or inscribed on a tangible medium or (ii) stored in an electronic or other medium and retrievable in a perceivable form and whether an electronic signature authorized by Virginia Code 1-257
- Information: means data, text, images, videos, sounds, codes, computer programs, software, databases, or something that is substantially similar. See Virginia Code 64.2-116
- Person: means an individual; estate; business or nonprofit entity; public corporation; government or governmental subdivision, agency, or instrumentality; or other legal entity. See Virginia Code 64.2-116
- Personal property: All property that is not real property.
- Principal: means an individual who grants authority to an agent in a power of attorney. See Virginia Code 64.2-116
- Protected person: includes an individual for whom an application for the appointment of a conservator or guardian is pending. See Virginia Code 64.2-116
- Terms-of-service agreement: means an agreement that controls the relationship between a user and a custodian. See Virginia Code 64.2-116
- User: means a person that has an account with a custodian. See Virginia Code 64.2-116
1. The duty of care;
2. The duty of loyalty; and
3. The duty of confidentiality.
B. A fiduciary‘s or designated recipient‘s authority with respect to a digital asset of a user:
1. Except as otherwise provided in § 64.2-118, is subject to the applicable terms-of-service agreement;
2. Is subject to other applicable law, including copyright law;
3. In the case of a fiduciary, is limited by the scope of the fiduciary’s duties; and
4. May not be used to impersonate the user.
C. A fiduciary with authority over the property of a decedent, protected person, principal, or settlor has the right to access any digital asset in which the decedent, protected person, principal, or settlor had a right or interest and that is not held by a custodian or subject to a terms-of-service agreement.
D. A fiduciary acting within the scope of the fiduciary’s duties is an authorized user of the property of the decedent, protected person, principal, or settlor for the purpose of applicable computer-fraud and unauthorized computer-access laws, including Article 7.1 (§ 18.2-152.1 et seq.) of Chapter 5 of Title 18.2.
E. A fiduciary with authority over the tangible personal property of a decedent, protected person, principal, or settlor:
1. Has the right to access the property and any digital asset stored in it; and
2. Is an authorized user for the purposes of computer-fraud and unauthorized computer-access laws, including Article 7.1 (§ 18.2-152.1 et seq.) of Chapter 5 of Title 18.2.
F. A custodian may disclose information in an account to a fiduciary of the user when the information is required to terminate an account used to access digital assets licensed to the user.
G. A fiduciary of a user may request a custodian to terminate the user’s account. A request for termination shall be in writing, in either physical or electronic form, and accompanied by:
1. If the user is deceased, a certified copy of the death certificate of the user;
2. A certified copy of the letter of appointment of the representative or a small-estate affidavit or court order, court order, power of attorney, or trust giving the fiduciary authority over the account; and
3. If requested by the custodian:
a. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
b. Evidence linking the account to the user; or
c. A finding by the court that the user had a specific account with the custodian, identifiable by the information specified in subdivision a.