2020 Code of Virginia
Title 64.2 - Wills, Trusts, and Fiduciaries
Chapter 1 - Definitions and General Provisions
§ 64.2-129. Fiduciary duty and authority

Universal Citation: VA Code § 64.2-129 (2020)

A. The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including:

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.

2017, cc. 33, 80.

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